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SPEECHES 


OF 


WILLIAM  L  YANCEY,  ESQ.,  | 


SENATOR    FROM 

THE  STATE  OF  ALABAMA; 


Made  in   the    Senate    of  the  Confederate  States, 

IMirinsr  the  Session  Commencing  on  the  18th 

clay    of  August,   A.   r>.   18G:>. 


MONTGOMERY,  ALA.: 

HOXTGOMERY  ADVERTISER  BOOK  AND  JOK  OFFICE. 
1862. 


"^"■^■■■■■■■■MiBna 


bi  jGH 


OF 


WILLIAM  L.  YANCEY,  ESQ., 

H7'' 


SENATOR    FROM 


THE  STATE  OF  ALABAMA; 

1 


Made  in    the    Senate    of  the   Confederate  States, 
During  the  Session  Commencing  on  the  ISth 

day    of  AuKust,   Al.    I>.    1863. 


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MONTGOMERY,  ALA.: 

MONTGOMERY  A.DVKRTISEB  BOOK  AND  JOB  OFFICE. 
1862. 


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RETALIATION. 

On  the  21st  of  August,  1862,  Mr.  Yancey  introduced  in  the 
Senate  the  following 

RESOLUTIONS 

Expressing  the  sense  of  the  Senate  in  respect  to  the  violation 
of  the  laws  and  usages  of  civilized  war  by  the  Government 
of  the  United  States. 

I.  Resolved  />;/  the  Senate  of  the    Confederate   States   of 
rica.  Thai    the   war  which   is   now  being  waged  by  the 

United  States,  for  the  avowed  purpose  of  subjugating  the  people 
of  the  several  States  of  this  Government  to  the  dominion  of 
the  Government  of  the  United  States,  is,  in  the  opinion  of  the 
Senate,  a  war  as  well  upon  the  people  as  upon  the  Government 
of  the  Confederate  States  of  America;  and  that  the  principles 
upon  which  t,his  Government  and  the  governments  of  the 
several  States  which  compose  it,  are  founded,  justify  each 
citizen  thereof,  when  the  invading  enemy  enters  upon  the  soil 
of  his  State,  in  taking  up  arms  to  defend  his  homestead  and 
liberties,  and  in  attacking  the  invader,  either  by  individual  ac- 
tion or  in  organized  bands. 

II.  Resolved,  That  when  any  of  our  citizens  shall  exercise 
this  sacred  right,  and  shall  by  the  fortune  of  war  fall  into 
the  hands  of  the  enemy,  they  are  entitled  to  be  treated  as  pris- 
oners of  war;  and  if  they  shall  be  treated  otherwise,  it  is 
the  duty  of  this  Government  to  extend  to  them  all  the  protec- 
tion which  may  be  within  its  power,  or  to  retaliate  for  injuries 
(lone  to  them. 

III.  Resolved,  That  in  the  event  the  enemy  shall,  in  revenue 
for  Mich  patriotic  defene|  of  tluir  State  by  any  of  its  citizens, 
seize  upon  and  imprison,  or  otherwise' injure. other  of  its  citizens 
not  implicated  in  the  particular  acts  for  which  such  rev< 
may  be  taken,  or  shall  pilhige  or  destroy  the  property  of  any 
of  our  citizens,  it  will  be  the  duty  of  this  Government  to  take 
prompt  notice  of  Buch   acts  of  cowardly  barbarity,  and    a 

as  ii  ay  be  within  its  power,  to  punish  the  perpetrators  Ihereb 
or  to  retaliate. in  such   manner  as  maj  be  most  likely  to  deu-c 
»ra  the  repetiti  b  deeds. 


7o-fe$ 


IV.  Resolved,  That  the  Senate  has  learned  with  lively  satis- 
faction that  the  President  of  the  Confederate  States  has  already 
given  serious  attention  and  grave  consideration  to  the  subject 
of  several  gross  violations  of  the  laws  and  usages  of  civilized 
war  by  the  military  authorities  of  the  Government  of  the  Uni- 
ted States,  and  has  already  iniated  measures  tending  to  pre- 
vent their  recurrence  ;  and  while  the  Senate  responds  with  sym- 
pathy to  the  regret  expressed  by  the  President  at  the  stern  ne- 
cessity which  the  enemy  seems  ruthlessly  to  force  upon  this 
Government  of  protecting  its  citizens  by  the  bloody  law  of  re- 
taliation, it  will  give  to  the  President  its  unfaltering  support  in 
the  prompt  execution  of  measures  devised  for  the  complete 
protection  of  our  citizens  in  the  exercise  of  the  inalienable 
rights  of  self-defense. 

V.  Resolved,  That  the  Committee  on  Military  Affairs  are  in- 
structed to  enquire  and  to  report  whether  any  further,  and  if 
so,  what  legislation  may  be  necessary  to  clothe  the  Excutive 
with  the  amplest  authority  to  act  upon  and  carry  out  the  intent 
aud  principles  enumerated  in  these  resolutions. 

The  resolutions  having  been  read,  Mr.  Yancey  spoke  as  fol- 
lows : 


Mr.  President — I  am  fully  impressed  with  the  belief  that 
the  circumstances  surrounding  us  call  lor  the  development  of 
all  our  military  power,  and  a  resort  to  the  sternest  measures  to 
deter  the  enemy  from  a  cowardly  and  barbarous  treatment  of 
our  people.  I  am  not  fully  informed  as  to  the  opinions  of  the 
Executive  as  to  the  right  of  our  citizens  to  wage  individual 
hostilities  against  the  invader  for  the  protection  of  their  State, 
their  homes,  and  their  liberties,  but  judging  from  the  letter  of 
the  Secretary  of  War  to  the  Hon.  Senator  from  Missouri,  [Mr. 
Clarke,]  I  incline  to  the  opinion  that  the  Executive  is  disposed 
either  to  deny  that  right  or  to  suppress  its  exercise  as  impolitic. 
The  country  is  in  painful  uncertainty  upon  the  question,  and  I 
wish  the  matter  to  be  settled  by  gome  solemn  decision  of 
Congress.  * 

The  first  resolution  announces  as  a  fact  that  the  war  is 
waged  by  the  United  States  against  the  citizens  of  the  Confed- 


8  *  *M 


erate  States  as  individual-:,  and  states  also,  as  a  principle,  that 
by  the  fundamental  law  of  this  Government,  sovereignty  rests 
in  the  people  of  each  State  alone,  and  that  the  Government  is 
but  their  agent.  Upon  this  fact  and  this  principle  I  build  up  the 
conclusion  that  when  one  of  the  States  is  invaded  for  the  pur- 
pose of  .destroying  that  sovereignty,  and  of  confiscating  the 
property  and  taking  away  the  liberties  of  its  people,  each 
citizen  is  justified  in  attacking  and  slaying  the  invader  wherever 
he  may  meet  him,  and  by  all  the  means  the  God  of  nature  has 
put  into  his  hands  and  which  are  known  to  civilized  warfare. 

The  Secretary  of  War  has  said  that  by  the  customs  of  modern 
Warfare  war  is  to  be  considered  as  waged  between  govern- 
ments— thereby  implying,  if  not  directly  stating,  that  the  people 
are  not  considered  as  parties  to  it.  This  might  be  very  truly 
stated  as  to  the  wars  of  Europe  between  sovereign  dynasties — 
■where  sovereignty  is  claimed  to  rest  in  the  government  only, 
and  where  the  people  are  held  as  subjects.  But  it  cannot,  in 
my  opinion,  be  correctly  held  as  to  a  war  of  conquest  waged 
against  a  government  of  the  character  of  this,  in  which  our 
peoples  constitute  the  sovereignty,  and  government  is  nothing 
but  the  agent  of  these  several  sovereignties.  In  Europe  it 
generally  matters  but  little  to  the  people  which  sovereign  family 
rules  over  them,  for  their  taxes  are  not  lessened,  nor  their  priv- 
ileges increased  as  a  general  thing,  by  any  result  of  war.  They 
remain  subjects  under  any  event.  But  how  different  with  us. 
In  the  event  of  our  failure  to  maintain  ourselves,  not  only  is 
our  property  to  be  confiscated,  but  imprisonment  and  death,  on 
a  scale  hitherto  unknown,  is  threatened,  and  the  right  of  self- 
government  even  is  to  be  wrested  from  us. 

It  should  also  be  borne  in  mind,  that  our  enemy  does  not  admit 
that  we  have  a  rightful  government,  either  State  or  Confederate, 

>}   cming  and  treating  our  system  of  governments  but  as  BO 
rebellious  organizations,   and  their  war,  therefore,  is  both  in 


theory  and  in  practice  waged  against  each  loyal  citizen  of  the 
Confederacy  as  a  rebel. 

In  confirmation  of  this,  look  to  their  military  occupation  of 
Kentucky,  against  the  remonstrances  of  that  State — to  their 
course  in  Missouri,  towards  both  its  government  and  people — 
to  their  displacement  of  the  authorities  of  Tennessee  and 
Louisiana  and  of  North  Carolina,  and  to  their  governing  of 
those  States,  as  far  as  they  can  do  so,  as  military  provinces. 
Read  their  acts  of  confiscation  and  of  threatened  punishment  of 
all  our  people  by  fine  and  imprisonment,  and  then  look  to  their 
acts  of  murder,  rape  and  robbery,  wherever  their  armies  occupy 
our  soil. 

In  my  opinion  there  can  be  no  doubt  that  when  a  State  is 
invaded,  each  of  its  citizens,  as  one  of  the  sovereignty  thus  put 
in  danger  and  thus  directly  assailed,  has  as  much  right  to  slay 
the  invading  foe  as  a  sovereign  Prince  in  Europe  has  to  put  on 
armor  and  war  upon  an   invader  of  his  principality.     The  doc- 
trines of  European  warfare  no  more  restrict  him  in  the  exercise 
of  this  right,  than  the  doctrine  of  European  sovereignty  restricts 
him  in  the  right  of  self-government — the  right  of  secession — 
the  right  of  revolution,  all  of  which  are  alone  recognized  in  our 
government.     The  exercise  ot   such  a  right  will  also  be  of  the 
greatest  disadvantage  to  the  enemy,  who  have  their  armies  far 
from  the  residences  of  their  people,  and  can  therefore   bring  to 
t  lieii-  aid  no  counteracting  policy  of  the  kind,  while  it  will  be  to 
us  a  strength  as  great,  perhaps  greater  even,  than  that  of  our 
organized  armies.     History  furnishes  a  noted  example  of  the 
tremendous  strength  of  a  people  entirely  in  arms  for  the  defense 
of  their  homes.     One  of  its  most  significant  pages  tells  us  that 
when  Spain  was  invaded  by  the  invincible  legions  of  Napoleon, 
(invincible  in  regular  combat)  and  had  no  organized  forces  to 
resist  their  occupancy  of  that  country,  the  people  of  Spain, 
scorning  submission  and  determining  to   resist  subjugation  to 
the  dominion  of  France,  took  up  arms,  and  in  self-constituted 


bands,  sallying  forth  from  the  forest,  from  the  plain,  from  the 
valley,  and  from  the  mountain-tops,  literally  destroyed  the 
armies  of  France  in  piece-meal  operations.  Whnt  though  the 
gibbet  and  the  halter,  the  dungeon  and  the  musket-shot  were 
threatened,  and  did,  in  fact,  destroy  thousands  upon  thousands 
of  those  patriots !  Life  to  them  "was  of  no  value  without 
national  liberty.  Death  had  no  terrors  to  those  brave  hearts, 
in  defense  of  their  firesides.  I  have,  sir,  sometimes  been  forced 
to  contemplate  the  day  when  our  organized  efforts  might  be 
crushed  by  overwhelming  numbers  and  for  want  of  the  material 
element  of  war.  But  should  that  day  ever  come,  it  will  bring 
no  despair  of  the  cause  to  my  mind  as  long  as  there  exists  a 
brave,  united  and  patriotic  people,  to  make  of  each  hill-top  a 
fort,  of  each  pass  an  ambuscade,  and  of  each  plain  a  battle-field. 
Pass  the  resolutions,  and  you  will  at  once  give  greater 
enthusiasm  to  each  brave  heart — increased  strength  to  the 
determined  will  of  our  people. 

The  other  resolutions  provide  for  the  protection  of  our  citi- 
izens,  who  may  thus  act  in  defense  of  their  State,  and  make  it 
the  duty  of  the  Government  to  take  such  measures  as  will  de- 
ter the  enemy  from  acts  of  revenge  on  account  of  such  action. 

It  is  well  known  that  the  enemy  has  treated  our  citizens,  not 
enmlled  in  the  armies  of  the  country,  as  outlaws  and  rebels. 
We  do  not  come  to  this  conclusion  from  such  isolated  facts  as 
might  be  considered  as  but  the  outbreak  of  lawless  soldiery  tra- 
de! circumstances  of  peculiar  temptation.  The  facts  to  sustain 
the  charge  arc  as  numerous  as  the  raids  of  the  enemy, 
tattng  place  over  the  entire  region  covered  by  their  lines,  from 
the  seaboard  to  the  far  west,  raids  as  brutal,  tad  cowardly, 
ami  beastly  as  might  be  expected  from  the  well  established 
character  of  the  Yank'c  j.(,.|ilc.  They  have  been  enacted  for 
so  long  a  time,  that  the  enemy  has  become  encouraged  in  the 
indulgence  of  his  cowardly  revenge  against  non-combat  an  ts  for 
the   dfagraeef    inflicted    upon   him    in  the  open  field  of  war  by 


our  brave  troops;  and,  in  addition  to  his  cruelties  and 
beastly  conduct  to  men,  women  aud  children,  he  has  openly- 
proclaimed,  as  one  of  the  elements  of  hostility  to  us,  the  plunder 
of  inoffensive  people.  Well  authenticated  history  will  show 
that  whole  villages  of  unresisting  people  have  been  given  up  to 
the  unbridled  lust  of  a  brutal  and  c>  wardly  soldierly  by  order 
of  one  of  their  commanders;  while  in  numerous  instances  in  the 
State  of  Virginia,  daughters  have  been  foully  dishonored  in  the 
presence  of  their  aged  parents  by  commissioned  officers  of  the 
enemy's  army,  and  the  broken  hearted  father  shot  down  on  his 
own  hearth-stone  for  his  brave  but  ineffectual  efforts  to  defend  the 
honor  of  his  family.  Sir,  it  is  time  that  this  Governn  ent  should 
no  longer  repress  the  yearning  of  our  people  to  take  up  arms 
to  defend  their  homes,  in  such  manner  as  may  yet  be  consistent 
with  their  attempts  to  maintain  their  families  by  the  ordinary 
pursuits  in  life.  The  rights  they  have  at  stake — the  character 
of  their  Government — the  object  and  the  manner  of  the  war 
waged  upon  them,  all  demand  of  this  Senate  and  of  every  De- 
partment of  this  Government,  the  fullest  approval  of  their  right 
to  do  so,  and  the  amplest  guarantee  for  their  protection  in  its 
exercise. 

Painful  as  may  be  the  alternative,  we  have  no  choice  left  us. 
Humanity  itself — weeping  humanity — demands  a  prompt  and 
an  unfaltering  exercise  of  every  right  of  the  law  of  self-defense, 
both  by  our  people  and  our  Government. 

It  may  bring  the  enemy  with  which  we  contend  to  be  con- 
tent with  the  exercise  of  the  laws  of  civilized  war ;  but  if  m 
his  blind  rage  and  maddened  furor  at  being  foiled  by  an  inferi- 
or, braver  and  more  skillful  army  than  his  own,  he  shall  choose 
to  retaliate  for  a  just  retaliation;  if  he  has  nerve  enough  to 
tread  that  terrible  and  bloody  path,  and  to  brave  the  powers 
and  maledictions  of  the  civilized  world,  he  may  be  assured, 
should  be  assured  by  this  Congress,  that  having  counted  the  cost 
of  this  great  movement  for  self-government,  we  shall  not  turn 


9 

back,  nor  be  deterred  by  any  terrors  from  prosecuting  it  to  a 
successful  though  it  may  be  a  most  bloody  conclusion. 

Mr.  Yancet  said  that  he  had  been  betrayed  into  a  more 
lengthy  expression  of  his  views  than  he  had  anticipated,  and 
concluded  by  asking  the  Senate  to  act  directly  upon  the  propo- 
sitions he  had  submitted. 

250  copies  of  the  resolutions  were  ordered  to  be  printed,  and 
they  were  made  the  order  of  the  day  for  25th  August ;  and 
finally  were  placed  upon  the  calendar  of  the  secret  session. 


SECRET  SESSIONS. 

In  the  Senate,  on  the  21st  August,  1862,  Mr.  Yancey  gave 
notice  of  a  motion  to  amend  the  rules  of  the  Senate,  so  as  to 
require  a  vote  of  two  thirds  of  the  Senators  to  go  into  secret 
legislative  session.  On  the  22d  August  he  addressed  the 
Senate  in  favor  of  his  motion,  as  follows : 

Mr.  President:  The  rules  of  the  Senate,  which  I  have 
moved  to  amend,  make  secrecy  in  legislation  the  rule,  and 
open  session  the  exception.  The  43d  rule  which  I  have  pro- 
posed should  be  stricken  out,  requires  the  Senate  to  go  into  se- 
cret session  upon  motion  of  a  Senator,  seconded  by  another. 
The  4  5th  rule  makes  it  the  duty  of  the  Senate  to  consider  all 
questions  relating  to  the  public  defense  in  secret  session,  un- 
less determined  otherwise  by  a  secret  vote.  The  effect  of  my 
amendments,  if  adopted,  will  he  that  all  legislative  sessions 
will  be  open  to  the  public,  except  In  such  cases,  as,  in  the  opin- 
ion of  two  thirds  of  the  Senate  voting  in  open  session  by  yeas 
and  nays,  the  interests  of  the  country  shall  require  to  be  con- 
sidered with  closed  doors. 

On  first  taking  my  seat  in  the  Senate,  I  called  the  attention 
of  members  to  this  subject,  as  an  anomaly  in  republican  gov- 
ernment, but  was  disposed  to  yield  and  did  yield  my  own 
views  to  the  generally  expressed  opinion  of  Senators,  that  it 
was  a  wise  policy  under  the  circumstances,  and  had  workad 
well.  The  subject,  however,  has  engaged  much  of  my  atten- 
tion and  reflection  during  the  recess,  and  I  am  now  fully 
convinced  that  we  have  too  much  secrecy  in  our  legislation, 
and  that,  as  a  matter  of  republican  principle,  it  is  clearly  wrong 


11 

to  make  secrecy  the  general  rule  of  the  Senate.  I  do  not  know, 
Mr.  President,  that  the  opinions  of  Senators  have  under- 
gone any  change  on  this  subject,  but  I  conceive  it  to  be  my 
duty  to  make  an  effort  to  bring  back  the  Government  to  a  more 
clearly  defined  republican  traek,  and  to  place  myself  fairly  on 
record  before  the  public. 

I  do  not  doubt  that,  in  times  like  these,  there  are  matters 
winch  a  wise  prudence  required  us  to  consider  in  secret.  My 
proposed  amendment  leaves  it  in  the  discretion  of  the  Senate — 
to  be  exercised,  however,  in  open  session — under  its  responsi- 
bility to  tin'  people,  to  consider  such  matters  in  secret.  But,  in 
my  opinion,  there  are  far  fewer  calls  for  the  exercise  of  such 
discretion,  than  is  generally  supposed  by  Senators. 

The  reasons  urged  in  support  of  secret  sessions  resolve  them- 
selves into  two  propositions  : 

1st.  It  is  unwise  to  let  the  enemy  know  of  our  discussions. 

2d.  It  is  unwise  to  let  our  constituency  know  of  our  discus- 
sions. 

I  do  not  think,  giving  the  fullest  foice  to  both  propositions, 
that  the  doubtful  benefit  accruing  from  them,  at  all  equals  the 
injury  done  to  public  sentiment,  by  depriving  the  people  of  a 
knowledge  of  your  proceedings. 

It  must  be  borne  in  mind  that  no  military  plans  are  devised 
here,  no  contemplated  army  movements  are  known  to  Senators. 
Financial  questions  with  us  would  seem  to  need  no  secrecy. 
The  whole  world  knows  that  we  operate  alone  upon  our  credit 
with  our  own  people.  "What  is  there  then  that  requires  secre- 
cy as  a  general  rule,  in  the  wide  range  of  legislation  ?  You 
publish  all  your  laws,  military  and  financial.  The  chief  results 
of  your  deliberation  are  made  known.  But  you  conceal  from 
your  constituents  your  individual  action,  your  individual  views. 
You  conceal  from  them  propositions  which  are  rejected,  and 
the  names  of  those  who  propose  and  who  reject  them.  You 
conceal  from  them  the  projectors  of  laws  which   are  adopted, 


12 

and  of  those  who  sustained  or  opposed  them.  You  conceal 
from  thern  the  fact  that  plans  were  not  proposed  which,  in  their 
opinion,  might  have  been  wisely  proposed  and  adopted.  You 
conceal  from  them  also  that  class  of  legislative  action  of  the 
two  houses  which  may  have  been  vetoed  by  the  Executive ;  and 
you  leave  them  entirely  ignorant  as  to  the  relative  wisdom  or 
independence  of  their  Executive  and  their  Representatives  in 
such  cases.  These,  in  my  opinion,  constitute  the  great  mass  of 
matter  kept  from  the  public  by  secrecy ;  and  these  I  w^'uld  un- 
veil to  the  scrutiny  of  our  constituency.  In  doing  so,  I  can  see 
but  little  public  evil  which  would  result,  on  the  contrary,  much 
public  good. 

It  is  said,  however,  that  sentiments  sometimes  expressed  by 
Senators  have  a  bad  influence  on  the  public  mind.  I  do 
not  think  so.  I  have  a  far  different  view  of  the  firmness  and 
wisdom  of  the  public  mind.  It  has  not  been  depressed  by  mis- 
fortune to  our  arms  nor  by  loss  of  territory,  but  on  the  contra- 
ry has  been  influenced  by  such  misfortune  to  renewed  exhibi- 
tion of  courage,  energy  and  patriotism.  There  was  a  time 
doubtless  in  which  the  public  heart  might  have  been  discour- 
aged by  indiscreet  speakers — the  period  immediately  folllovving 
the  acts  of  secession,  when  large  minorities  existed  in  nearly 
every  State  opposed  to  this  movement,  when  public  sentiment 
had  not  been  consolidated  it  its  favor — a  time  when  the  enlight. 
ened  and  patriotic  leaders  of  the  old  Union  party  were  over- 
whelmed with  anxiety,  lest  ltssons  of  conservative  regard 
for  the  Union  and  hope  in  ultimate  jnstice  from  the  North  had 
been  too  deeply  engraved  upon  the  hearts  of  that  party — a  time 
before  we  had  learned  to  have  confidence  in  each  other,  and  to 
mutually  understand  the  baseness  and  tyranny  of  the  enemy. 

But  that  time  and  its  distrusts  have  passed  away.     I  say  it, 

.fully  weighing  each  word  I  use,  that  to-day  we  present  to  the 

world  a  greater  unity  in  numbers,   in    confidence  in  each  other, 

and  in  adherence  to  our  cause,  than  our  forefathers  presented 


13 

in  the  revolution— than  the  Yankees  present  to-day    -than  is  to 
be  found  even  in  the  well  poised  Government  of  G     it  lirit.un, 
or  in  any  of  the  great  powers  of  Europe.     I  fur  her  say  it, 
with  the  fullest  sense  of  its  entire  truth,  and  in  no  carping  spirit, 
of  course,  for  any   department  of  the  Government,  that  the 
great  public  sentiment  of  our  people  to-day  is  of  a  higher  east 
of  revolutionary   energy,   wisdom  and  devotion   than  that  of 
their  Government    agents.     And  the  only  fear  Senators  need 
entertain  of  the  effect  of  giving  publicity  to  their  proceedings, 
is  that  there  will  be  a  stern  demand  that  they  eschew  all  reliance 
for  success  other  than  upon  their  constituency— and  that  they 
shall  call  more  freely  for  men  and  means  to  carry  this  war  into 
the  enemyls  country.     Sir,  on  a  memorable  occasion  in  the  histo- 
ry of  this  war,  it  did  transpire  that  there  had  been,  somewhere, 
in  some  Department  of  the  Government— Legislative  or  Execu- 
tive, an  astoundingwaut  of  comprehension  of  the  magnitude  of 
the  crisis,  and  a  consequent  failure  to  provide  for  a  proper  defense 
of  the  country.     I  allude  to  the  fall  of  Forts  Henry  and  Donelson, 
and  of  Roanoke  Island— to  the  rapid  loss  of  Southern  Kentucky, 
of  Middle  Tennessee,  and  of  North  Alabama.     The  public  had 
been  at  ease  since  the  battle  of  Manassas.    Lured  to  repose  and 
contidence  by  the  quiet  engendered  by  secrecf  in  their  own  Gov- 
ernment—and  by  the  apparent  inertness  of  the  foe,  it  deemed 
that  all  was  well,  and  that  the  Government  agents  were  as 
watchful,  wise  and  energetic  as  the  foe.     But  when,  in  Febru- 
ary last,  near  half  a  million  of  the  enemy  rushed  upon  our  bor- 
ders and  took  possession  of  large  sections  of  some  of  our  most 
valuable  territory  and  of  the  key  to  an  immense  extent  of  At- 
lantic coast,  the  people  were  aroused  from  their  ease  and  sha- 
ken in  their  contidence,  by  finding  that  the  country  had  neither 
men  nor  arms  in  the  field  at  all  adequate  to  its  defense. 

What  facts  on  your  secret  journal— what  discussion  in  your 
secret  session,  if  given  publicly  to  the  world,  were  so  well  cal- 
culated to  encourage  the  enemy  as  this  publicly  demonstated 


14 

weakness  in  a  most  critical  hour,  and  were  so  well  calculated 
to  depress  and  to  demoralize  our  people.?  And  yet  so  far  from 
demoralizing — from  depressing — or  discouraging  our  people,  to 
the  sudden  call  of  the  President '•  To  arms  !"  the  Southwest 
arose  in  the  might  of  a  giant,  and  coming  forth  from  hill  top, 
valley  and  plain,  the  people  with  their  rude  weapons  of  war, 
immediately  formed  an  army,  and  the  enemy  has  been  unable 
to  advance  one  mile  beyond  the  lines  obtained  by  surprise,  in 
unequal  conflict,  and  is  now  retreating  to  his  fortresses; 

Now,  sir,  who  is  there  will  dare  assert  that,  had  the  people 
knowm  the  true  state  of  things  from  August  '61  to  February 
'62,  this  baneful  repose  of  the  Government  would  have  been 
allowed  such  long  continuance?  Was  their  legislative  repre- 
sentative at  fault  ?  He  would  have  been  aroused  by  the  patriot- 
ic and  enlightened  energy  of  his  constituents  to  the  necessity 
of  some  attempt  to  put  the  country  on  a  proper  war  footing. 
"Was  their  executive  representative  at  fault  ?  Acted  upon,  both 
by  the  people's  own  expressed  will  and  that  of  their  Congress, 
he  too,  it  may  be  supposed,  would  have  been  aroused  to  the 
necessity  of  lopping  off  the  weak  branches  of  his  administra- 
tion, and  of  exerting  more  energy  to  obtain  both  men  and 
arms. 

If  men  had  been  needed,  they  were  in  the  country  and  ready 
to  volunteer  when  fully  apprised  of  the  necessity.  For  in- 
stance, after  these  disasters,  at  the  call  of  the  President  my 
own  gallant  State  furnished  eight  regiments  of  volunteers  in 
excess  of  her  assigned  quota.  Were  arms  needed  ?  In  addi- 
tion "to  a  very  large  number  of  private  arms,  with  which  a  large 
proportirn  of  the  late  volunteers  armed  themselve,  there  were 
the  vast  storehouses  of  Europe,  from  which  the  Yankees  drew, 
in  six  months,  over  half  a  million  of  good  weapons,'  and  which 
were  equally  accessible  to  us.  Instead  of  being  appalled  by 
your  expenditures  for  the  war,  the  people,  who  pay  that  expen- 
diture, are  amazed  at  the  parsimony  of  Cabinet  calls  for  appro- 


15 

rial  ions.  They  have  the  all  that  is  at  stake — liberty,  life,  prop- 
erty ;  and  their  chief  demand,  in  which,  in  ray  opinion,  they  are 
wiser  than  the  Government,  is  that  you  spend  more  of  their 
property  and  risk  more  of  their  lives  for  the  safety  of  their 
liberties. 

Such  a  spirit  is  not  to  be  depressed  or  demoralized  by  a  full 
knowledge  of  your  discussions.  But  it  is  urged  that  public 
discussions  will  give  rise  to  parties  and  to  factions.  Parties  are 
incident  to  institutions  based  on  elective  franchise ;  and  it 
has  been  a  republican  argument,  that  parties  keep  up  a  healthy 
public  sentiment,  and  aid  to  check  improper  assumption  of  pow- 
er by  those  in  office. 

As  to  factions,  I  have  but  little  tear  of  them,  if  you  will  let 
in  the  healthful  sunlight  of  an  enlightened  public  opinion  upon 
your  body.  Far  more  likely  to  have  factions  gcuerated  in  the 
unhealthy  shade  of  secret  sessions — under  the  more  poisonous 
mias'nia  which  is  generated  in  darkness,  and  which  is  dispelled 
by  the  morning  sun.  In  the  years  1778,  1779  and  1790,  before 
the  Constitution  was  formed,  when  our  forefathers  had  no  Pres- 
ident, and  governed  the  country  by  a  single  provisional  body, 
that  body  held  secret  sessions.  In  the  Convention  which 
framed  the  Constitution.  Col.  Mason  said:  "The  people  will 
not  give  their  confidence  to  a  secret  journal — to  the  intrigues 
and  factions  naturally  incident  to  secrecy.  If  any  one  doubts 
the  existence  of  such  a  state  of  things  in  Congress,  let  him  re- 
fer  to  its  journals  of  1778,  1779  and  1790." 

I  have  been  considering  this  question,  Mr.  President,  as  a 
policy.  I  come  now  to  view  it  in  its  higher  aspect,  as  related 
to  the  fundamental  principle  upon  which  this  Government  is 
founded — the  elective  franchise.  The  Executive  and  each 
branch  of  Congress  is  elected.  The  right  to  elect  involves  ap- 
proval or  condemnation — involves  a  supposed  know'edge  of  the 
opinions  and  actions  of  the  candidate  upon  public  questions 
And  yet  wliai  —what  a  humbug — whai  perfection  offac- 


16 

tion  will  elections  become  indeed,  when  the  constituency  have 
no  record  upon  the  most  momentous  period  of  their  Govern- 
ment action,  by  which  to  approve  or  to  condemn  a  public  ser- 
vant, who  is  a  candidate  for  re-election !  By  your  own  act  you 
deprive  your  constituency  of  the  means  of  an  intelligent  and 
patriotic  exercise  of  the  highest  function  of  citizenship,  and 
under  such  circumstances  elections  will  become  but  a  struggle 
of  factions  for  the  advancement  of  wicked,  personal  aspirations. 
I  move  the  adoption  of  my  motion. 


CONSCRIPTION. 

In  the  Senate,  on  the  3d  of  September,  Mr.  Yancey  off- 
ered the  following  amendment  to  the  bill,  reported  by  the  Sen- 
ate Committee  on  Military  Affairs,  to  amend  an  Act  eutitled 
"An  Act  to  provide  for  the  public  defense,"  approved  16th  of 
April,  1862. 

Strike  out  all  after  the  enacting  clause,  and  insert : 

That  the  President  be,  and  is  hereby  authorized,  and  it 
shall  be  his  duty  to  make  requisition  upon  the  Executive  au- 
thorities of  the  several  States  of  the  Confederacy  for  their 

proper  proportion  or  quota  of ! troops,  to  be  raised 

from  citizens  between  the  ages  of  35  and  45,  and  to  be  received 
in  companies  of  not  less  than  100,  nor  more  than  120  men,  offi- 
cered under  the  laws  of  the  State  furnishing  them.  Said  troops 
to  be  received  into  the  service  of  the  Confederate  States  for 
the  term  of  three  years  or  during  the  war,  to  be  organized  in 
such  manner  as  the  President  may  deem  most  conducive  to  the 
public  iuterest,  and  in  all  respects  to  be  considered  as  part  of 
the  army  of  the  Confederate  States. 

Sec.  2.  In  the  event  any  of  the  Governors  of  the  several 
States  shall  fail  or  refuse  to  comply  with  said  requisition,  with- 
in thirty  days  after  it  shall  have  been  made,  the  President  in 
that  event  is  hereby  authorized,  and  it  shall  be  his  duty,  to 
cause  to  be  enrolled  in  the  military  service  of  the  Confederate 
States  all  able  bodied  white  men  in  the  several  States,  not  le- 
gally exempt  from  such  service,  who  may  be  between  the  ages 
of  35  and  45  years,  in  addition  to  those  subject  to  enrollment 
under  the  "Act  further  to  provide  for  the  public  defense,"  ap- 
proved 16th  April,  1862,  who  shall  be  organized  under  the  pro- 
visions of  that  Act : — Provided,  that  no  officers,  civil  or  milita- 
ry, of  the  governments  of  the  States  shall  be  enrolled,  either 
under  this  Act  or  the  Act  to  further  provide  for  the  public  de- 
fense, approved  16th  April,  1862  :  and  Provided  further,  that 
all  men  now  in  the  army  over  45  years,  of  age  shall  be  entitled 
to  an  immediate  discharge  within  sixty  days  after  the  passage 
of  this  act. 


18 

On  the  4th  September,  Mr.  Yancey  said : 

Mr.  President — At  the  last  session  I  voted  for  the  Act,  com- 
monly called  the  Conscript  Act,  reported  by  the  Committee  on 
Military  Affairs  in  conformity  with  the  recommendation  of  the 
President,  chiefly  because  of  the  necessity  of  keeping  in  the 
army,  then  menaced  by  superior  numbers  of  the  enemy,  some 
seventy-five  or  eighty  thousand  experienced  and  brave  soldiers, 
whose  terms  of  service  were  expiring  even  while  we  were  en- 
acting the  law.  Had  it  not  been  for  that  controlling  necessity, 
I  believe  another  mode  of  raising  men  for  our  armies  would 
have  been  adopted.  That  reason— that  hard  necessity  does 
not  exist  now.  Our  armies  are  driving  the  enemy  before  them, 
and  we  can  deliberate  upon  and  adopt  the  best  means  of  re- 
cruiting them,  without  doing  violence  to  the  feelings  or  preju- 
dices of  any. 

The  attempt  to  put  that  law  in  force  has  called  forth  solemn 
protests,  from  at  least  two  of  the  Governors  of  the  States, 
against  its  constitutionality,  and  has  in  some  other  quarters  pro- 
duced irritation  on  account  of  its  hardship  and  aupposed  viola- 
tion of  State's  rights.  In  one  instance  an  actual  collision  be- 
tween the  authorities  of  a  sovereign  State  and  of  the  Confede- 
cy,  was  alone  prevented  by  the  prudence  and  moderation  of 
the  President,  for  which  he  deserves  well  of  the  country. 

I  have  not  had,  and  do  not  now  have,  a  particle  of  doubt 
as  to  the  constitutionality  of  that  law.  I  have  not  read 
or  heard  of  any  argument  against  it,  which  I  conceived  tenable; 
and  in  proposing  now  to  raise  troops  for  our  army  in  some  other 
mode,  if  practicable,  it  is  not  that  conscription  is  unconstitution- 
al, but  that  it  is  wise,  in  my  opinion,  to  act,  as  far  as  possible, 
in  harmony  with  the  authorities  of  the  several  Slates,  so  long 
as  we  can  do  so  consistently  with  our  duty  to  the  common  cause. 
If  one  or  more  of  the  sovereign  States  conceive  that  conscrip- 
tion is  wrong,  and  yet  are  unwilling  to  furnish  all  the  troops 
required  through..  State  agency,  the  main  object  being  to  obtain 


19 

the  troops,  it  seems  to  me  to  be  both  wise  and  dignified  to  ac- 
cept them  at  the  hands  of  the  States,  and  to  forego  our  right  to 
go  into  a  State  and  to  enroll  the  men  "  individually."  "We  should 
remember  that  State  sovereignty,  which  in  some  respects  is  the 
strongest,  may  yet  become  the  weakest  point  in  our  organic 
system.  We  should  remember  that,  no  matter  what  may  be 
the  logic  of  our  position,  the  States,  in  our  acknowledged  view 
of  their  relation  to  this  government  and  each  other,  have  the 
right  to  judge  for  themselves,  in  the  last  resort;  and  on  a  ques- 
tion of  the  invasion  of  their  rights  by  this  government,  are 
likely  to  decide  that  question  from  their  own  stand-point,  and 
in  favor  of  their  own  interests.  It  seems  to  me  that  no  states- 
man would,  without  the  sternest  necessity,  force  such  an  issue 
upon  them.  In  war  an  agrieved  State  may  yield  its  judgment 
simply  because  of  external  pressure,  and  the  danger  of  intes- 
tine division. 

Such  was  the  action  on  the  Conscript  act  of  the  Governor  of 
this  State.  But  the  matter  does  not  and  cannot  pass  away, 
with  a  mere  protest.  When  the  war  ceases — when  this  exter- 
nal pressure  is  removed  and  peace  gives  occasion  for  the  full 
development  of  State  sovereignty  and  resources — such  collis- 
ions, such  temporary  submission,  favored  by  circumstances,  are 
remembered  ;is  humiliations;  they  are  like  old  wounds,  and  oc- 
casion a  jealous  and  watchiul  conduct  towards  the  Confederate 
Government  which  inflicted  them,  and  tend  to  breed  parties, 
which,  in  the  end,  may  disrupt  the  Government. 

I  desire,  in  all  my  action  as  a  Senator,  to  give  as  little  occa- 
sion for  remembrances  of  this  kind  as  possible. 

Senators  speak  of  prosecuting  the  war  with  energy.  Energy 
which  arises  from  the  smooth  ami  harmonious  action  of  all  the 
parts  of  our  complex  Government,  in  favor  of  a  common  cause, 
is  one  thing — and,  in  my  opinion,  the  ona  thing  to  be  desired  ; 
but  that  energy  of  one  Department,  which  produces  discord 
between   the    State  Governments  ami    that    of   the    Coufede- 


20 

i 
rate   States,   is  another   thing,  which,  in   my   opinion,  is  most 

deeply  to  be  deplored  and  to  he  avoided.     The  former  I  desire 

to  produce  by  the  substitute  I  offer.  It  is  a  peace  offering.  The 

occasion  is  propitious  for  offering  it.     Our  armies  are  victorious 

aud  the  people  and  authorities  of  the  several  States,  filled  with 

patriotic  fervor  and  hope,   will  promptly  respond  to  whatever 

call  for  aid  their  common  agent — the  Confederate  Government 

may  make. 

'  The  first  section  of  the  substitute  authorizes  a  call  upon  the 
States  to  furnish  each  their  proportion  of  such  number  of  men 
as  you  may  designate,  between   ;'o  and  45  years  old,  to  be  fur- 
'nished  in  companies  within  30  days,  and  to  be  officered  accord- 
ing to  the  laws  of  the  State. 

The  second  section  provides,  in  the  event  of  the  failure  of  a 
State  to  respond,  that  the  President  shall  proceed  to  enroll  all 
between  35  and  45.  The  substitute  gives  to  each  State  the  op- 
portunity and  privilege  of  furnishing  its  quota,  officered  by 
itself. '  Who  can  doubt  that  the  opportunity  will  be  seized  upon 
with  alacrity  by  each  State  to  exhibit  its  energy  and  patriotism. 
Why,  sir,  when  the  last  call  was  made  upon  my  State  for  twelve 
regiments,  she  furnished-over  twenty  full  regiments.  The  sub- 
stitute leaves  the  conscript,  act  in  full  force;  and  by  means  of 
that  act,  properly  administered,  after  you  have  duly  amended  it 
and  the  exempt  law,  you  will  be  able  to  raise  men  enough  be- 
tween IS  and  35  to  fill  up  the  old  regiments  to  at  least  TOO  or 
SOOjuen  each.    •■  . 

There  is  another  difference  between  the  substitute  and  the 
bill  of  the  committee.  The  latter  only  authorizes  the  President 
to  enroll  the  men.  If  he  sees  proper,  under  that  bill  he  may 
delay  doing  so,  or  not  do  so  at  all. 

.  Now  I  call  attention  to  the  message  of  the  President-  He 
says  events,  may  happen  which  will  render  it  necessary  to  have 
tlie  men,  &c.  ■  He  seems  to  intimate  that  at  present  there  is  no 
need  of  more  men.     If  that  is   the  opinion   of  the  President, 


31 

then,  as  a  Senator,  I  differ  from   him,   ai  mion 

th:!'  I  the  men  now.     >'  to  work  at  on 

raise  and*equi|>  and  sjibsisl    them,     It,  is  true,' our  armies  ate 
everywhere  victorious,  from   the   Mississippi  to  the   P 
hut  we  need  to  keen  them  in   the  pith  i  y — we  need  bo 

to  sUvn-then  them  that   th ■■;     shall    rush    through    th 
capital,  blow  up  every  vestige  i  ;>li«'  buildings,  niul 

on  into  the  heart  of  th  I  in  the 

of  his  1 1-  .  and  in  the  eit-.  lels  of  hi 

I  have  ever  been  of  the  opini   a   that    it    wag  uuwiso  to  permit 
the  war  to  have  its  seat  ami  |  i  our  ineti- 

tutions;  and  that  while  we  the  liberties  and  i 

enee  of  do  Other  people,  we  should   defend  our  own  wh< 
sailed  on  the  very  hearthsl  mti.     We  want  no 

protracted  war;  we  want  peace — the  dearest,  most  vadued  pri- 
vilege of  a  Christian  people.  Ci  .  we  want  a  numer- 
ous army  that  can  force  it-  Therefore,  Mr.  President,  in  the 
substitute  i  have  oil',  red,  I  hav*  not  only  authorized  the  I 
dent  to  call  for,  i  t  1  have  made  it 
"his  duty"  to  do 

In  another  particular  titute  differs  from  the  bi     ■ 

committee.     The   latter  doe*   uot'  touch   th 
made  by  the  Governor  of  <  and    lea\ 

o  1  before*     Eu  my   op 
be  construed,  taken   ru    •  -.  lion   with  the 

exempt ii  s.     1  think,  indeed,  tha 

liable  to  conscription  by.  virtu*  •  . 
atitution.     I  look  upon  the  i 
Governors',  .) 
tory  of  Constitutional     i  , 
officers  per  8< .     I  • 

m- et  it  and  not  leave  it   in   doubt       Mj 
declares  that  no  civil  or   military 
rolled  by  the  President.     1  bold  that   w 


22 

so — that  it  is  a  reserved  right  of  a  State  to  keep  perfect  its  owb 
State  organization.  That  organization  is  executive,  legislative 
and  judicial.  You  have  as  much  power  to  trench  upon  and  cur- 
tail all  of  these  departments  of  State  government  as  you  have 
to  take  a  Justice  of  the  Peace,  or  a  Constable  and  put  him  in 
your  army.  It  has  been  proposed  in  the  Senate  to-day,  in  con- 
sidering the  exemption  bill,  to  enroll  Justices  of  the  Peace  as 
soldiers  in  your  army;  and  the  Senator  from  Georgia  has  advo- 
cated the  power  to  do  so  in  an  ingenious  and  elaborate  speech. 
He  declares  that  your  power  to  raise  armies  is  only  limited  by 
your  necessity,  and  that  you  can  enroll  every  member  of  this 
body  and  every  member  of  a  State  government,  if  you  see  pro-' 
per  to  do  so.  With  such  sentiments  declared  in  the  Senate,  it 
is  time  that  by  some  solemn  vote  this  principle  should  be  passed 
upon,  and  in  my  opinion  should  be  repudiated  by  this  body. 

This  Government  I  hold  to  he  an  agent  of  the  States  compos- 
ing it — restablished  to  secure  to  each  State  and  the  people  thereof 
the  blessings  of  constitutional  liberty — and  that  the  great  mass 
of  the  personal  rights  and  liberties  of  the  citizen  are  derived 
from  the  State  constitutions. 

The  States  are  the  creators  of  this  governmental  agency,  and 
under  our  system,  as  now  organised,  can  each  separate  itself 
from  it,  when,  in  its  judgment,  it  may  think  it  best  to  do  so; 
and  there  is  no  power  in  the  Confederate  Government  to  say 
nay. 

The  State  governments,  then,  are  an  essential  part  of  the  com- 
plex system  of  government  known  as  the  Confederate  States. 
They  are  essentially  necessary  to  its  existence  and  its  practical 
working.  Without  them  there  can  be  no  Senate.  I  sit  here 
to-day  as  a  citizen  of  Alabama  [not  as  a  citizen  of  the  Confede- 
rate States]  chosen  by  the  government  of  my  State. 

Without  State  Governments  there  can  be  no  House  of  Rep- 
resentatives, because  there  can  be  no  electors  of  that  House — 
they  being  such  as  the  State  Governments  designate. 


23 

Yet,  although  these  things  be  so,  the  Senator  from  Georgia 
[Mr.  Hill,]  says  that  he  boldly  meets  my  proposition  fend  avers 
that  under  the  war-making  power  Congress  can  enroll  every 
judicial  officer  of  a  State,  from  Justice  of  the  Peace  to  the 
Chief  Justice  upon  the  supreme  bench— can  enroll  every  mein- 
ber  of  Congress — and  as  one  reason  therefor  has  brought  into 
the  Senate  Lincoln's  great  reason  for  all  his  usurpations — that 
the  'National  life  is  in  danger.' 

[Mr.  ITir.L  declined  saying  anything  that  would  just ity  Lin- 
coln's usurpations.] 

Far  be  it  from  me  to  make  such  an  assertion  of  the  distin- 
guished Senator;  bnthe  has  urged  that  "the  National  Life" 
was  in  danger,  and  that   our    war  power   was    unlim 
therefore  we  could  conscripl  Stale  officers.     Mr.  President,  I 
here  enter  my  solemn  protest  against  the  introduction  into  our 
political  vocabulary   of  such   a   phrase    as  "the  National  Life." 
Sir,  we  have  no  national  life.     u  National  Life"  is  but.  another 
term  for  Sovereignty.     A  nation  is  a  Sovereign  State;  the  Con- 
federacy  is  not   a  Sovereign    State.     This    Government,  as   to 
foreign  nations,  is  a  Confederacy,  and  may  be  termed  by 
national.     As  between  itself  and  its  creators,  the    3l        .  it  is 
but  an  agent  and  in  no  sense  national.     It  has  no  national  life 
to  defend.     Its  province — its  soje  province,  is  todefend  O 
tutional  Liberty— -the  Constitutional  liberties  of  the  State-  and 
of  the  people,  of  the  States.    Its  agency  is  to  guard,  ] 
and  perpetuate  those  liberties;    To  that  end  it  has  given  to  it 
the  power  to  make    war — 1"    raise    armies;   hul    how    absurd  tO 
const  v\u  t  hat  power  into  a  power  to  crush,  to  destroy,  or  in  any 
way  to  curtail  any  of  those  rights  of  its  creators—  th< 
or  of  the  liberties  of  a  single  citizen  of  the  States.     If  the  prin- 
eiple  ia  yielded  thai  <  Jongress  an,  under  the  war  power,  di 
VBScript  the  civil    or    military    officers  of  a  BOV<  r< 

then  that  Stat.    G       rnment,  during  a  time  of  w  only 

by  the  will  of  Coi,  that  to  be  suspended  altogethi 


24 

to  exist  in  a  maimed  and  inefficient  manner.  If  such  a  princi- 
ple is  correct,  then  it  follows  that  the  Confederate  Government 
is  of  greater  value  and  more  sacred  than  the  States  and  the  lib 
erties  of  citizens  of  the  States. 

Mr.  President,  I  meet  this  assumption  of  power  on  the  thres- 
hold.  I  deny  in  toto  that  the  Confederate  Government  is  su- 
perior to  and  of  more  value  than  the  reserved  rights  of  the 
States  and  of  the  people  thereof.  I  deny  in  toto  that  the  war 
power  is  paramount  to  the  civil  power,  either  of  the  Confede- 
rate or  State  Governments.  All  history  teaches  us,  it  is  true, 
that  in. time  of  war  the  civil  shrinks  in  the  back  ground  before 
the  fiercer  bearing  and  more  energetic  action  of  the  war  power. 
Such,  in  fact,  is  the  state  of  things  in  the  Confederacy  today. 
Even  in  the  very  citadel  of  the  civil  power  its  chosen  guardians 
clioose  to  yield  to  the  usurpations  of  the  leaders  of  armies  and 
to  palliate  if  not  justify  them.  I  am  not  one  of  those.  I  here 
assert  that  the  war  power  is  but  one  of  the  means  belonging  to 
the  civil  power,  to  be  used  to  maintain  and  defend  and  preserve 
the  great  elements  of  civil  governments;  that  the  raising  of 
armies,  the  conduct  of  the  war,  the  duration  of  the  war,  are  all 
within  the  scope  and  control  of  the  legislative  power — the  only 
power  which  is 'supreme  in  this  government.  We  are  the  mas- 
ters of  that  power  of  war,  and  it  is  to  be  made  subservient  to 
our  will.  Practically,- 1  admit  that  in  parts  of  the  country  it 
has  been  the  reverse.  We  have  a  General  who,  by  military  or- 
ders, assumes  a  military  censorship  over  the  press.  We  have  a 
General  who  declares  martial  law  over  whole  States,  and  has 
even  carried  his  usurpation  so  far  as  to  abrogate  the  municipal 
government  of  one  of  our  large  towns  and  to  appoint  a  military 
governor  over  its  inhabitants.  More  monstrous  usurpations 
never  were  practised  by  any  of  the  Stuarts.  This  is  that  West 
Point  despotism,  which,  in  its  arrogance,  deems  the  people  in- 
capable of  furnishing  a  good  officer  to  command  their  volun- 
teers, or  even  of  governing  themselves  in  time  of  war.     It  is 


25 

the  result  of  an   exclusive  military  education,   which  cultivates 
the  idea  that  the  glory  of  anus  is  the  great  glory  of  life. 

It  is  time  that  Congress  was  gravely  considering  this  state  of 
things.  It  is  time  that  West  Point  despotism  was  crushed  in 
the  conduct  of  the  army,  as  well  as  driven  out  of  this  hall, 
where  it  seeks  to  obtain  a  footing. 

It  is  on  account  of  the  responsibility  which  I  conceive  these 
facts  have  thrown  upon  us,  tltat  I  have  introduced  a  proviso 
into  the  substitute  that  no  civil  or  military  officer  of  a  Slate 
shall  be  conscripted.  I  believe,  as  a  matter  of  fact,  that  there 
is  but  little  use,  during  thesc^troublesome  times,  for  many  ma- 
gistrates and  constahles  and  clerks  in  the  States.  But  it  is  not 
within  our  province  to  reach  the  evil.  It  is  the  privilege  of 
each  State  to  regulate  its  own  government.  It  is  in  their  juris- 
diction to  dispense  with  them.  If  they  do,  they  then  fall  within 
our  power  to  conscript.  But  I  will  be  the  last  one  to  tear  them 
from  the  protection  of  State  sovereignty. 

Neither  are  we  so  hard  pressed, Mr.  President,  that  we  should 
he  driven  to  exercise  this  power,  even  if  we  possessed  it.      Oar 
armies   are  now   victorious   everywhere.     They   have   he' 
for  months.     It   is  the   result  of  superior  generalship   and  the 
superior  fighting  qualities  of  our  armies. 

It  is  true,  it  is  wise  now  to  commence  recruiting,  for  we  1 
hundreds  of  thousands  of  our  people  to  spare;  hut  it  is  equally 
true  that  we  can  oftljtTjarm  and  subsist  a  certain  number, -add 
we  can  easily  rais-almt  number  and  yet  not  encroach  upon  the 
officers  of  any  of  the  State  (iovernments.  I  hope  that  my  amend- 
ment will  be  adopted. 


EXEMPION  OF  STATE  OFFICERS. 

The  Exemption  bill  being  under  consideration,  Mr.  Dortch, 
of  North  Carolina,  moved  to  amend  the  bill  so  that  Justices  of 
the  Peace  should  be  liable  to  conscription.  On  the  10th  Sep- 
tember, 1862,  Mr.  Yancey  addressed  the  Senate,  upon  that 
motion,  as  follows : 

Mr.  President  :  The  Senator  from  North  Carolina  proposes 
that  Justices  of  the  Peace  in  the  several  States  shall  be  enrolled 
as  conscripts  in  the  army  of  the  Confederate  States— at  the 
same  time  giving  notice  that  he  will  offer  other  amendments, 
making  other  State  officers  liable  to  enrollment  under  the  con- 
script act.  The  Senators  from  Georgia,  [Mr.  Hill,]  froni  Mis- 
sissippi, [Mr.  Phelan]  and  from  Kentucky,  [Mr.  Simms]  have 
supported  that  amendment,  and  have  asserted  the  power  of  Con- 
gress to  enroll  as  conscript  soldiers  in  the  army  every  officer  of 
a  State,  whether  Judicial  Legislative  or  Executive,  and  also 
every  officer  under  the  Confederate  Government,  whether  Ju- 
dicial Legislative  or  Executive,  with  but  a  single  exception — and 
that  exception  the  President  of  the  Conf^ferate  States.  The 
enrollment  or  exemption  of  a  few  thousands,  tilling  the  humble 
but  useful  office  of  Justice  of  the  Peace,  can  be  of  but  little 
moment  compared  with  the  vast  fundamental  change  in  the 
character  of  this  Government  which  practical  legislation  upon 
such  principles  must  bring  about.  Legislation  upon  the  princi- 
ples which  have  been  thus  distinctly  avowed  and  elaborately 
argued  would,  in  my  opinion,  utterly  subvert  the  limited  Con- 
stitutional Government,  which  the  people  have  been  at  so  much 
pains  to  establish  and  harve  exhibited  so  much  patriotic  sacri- 


27 

fice  and  energy  to  defend,  and  would  effectually  erect  upon  its 
ruins  a  purely  military  Government.  So  thinking,  \  should  be 
unjust  to  all  the  principles  upon  which  I  have  acted  in  the  past, 
and  dirilect  to  the  duty  I  owe  to  the  State  which  I  in  part  rep- 
resent here,  and  to  the  oath  1  have  taken  to  preserve  and  de- 
fend the  constitution,  if  I  were  to  permit  the  avowal  of  such 
doctrines  to  pass  unchallenged.  If  this  amendment  hud  been 
proposed  and  passed  upon  without  debate,  Mr.  President,  it 
might  have  thus  become  one  of  the  facts  in  legislative  history 
of  eomparitively  small  moment,  and  not  justly  held  to  be  a 
precedent.  But  its  introduction  has  been  supported  by  grave 
and  apparently  maturely  considered  opinions  of  Senators  from 
three  of  the  thirteen  States  of  the  Confederacy,  and  has  led  to 
a  more  lengthened  and  dignified  debate  than  any  other  that  has 
occurred  in  this  body  since  my  connection  with  it.  Such  a  de- 
bate, upon  such  an  issue,  in  my  opinion,  will  mark  the  action  of 
the  Senate  upon  it  as  one  of  the  great  landmarks  in  legislative 
construction  of  the  constitution;  and  as  the  question  passes  into 
history,  its  footprints  will  be  gr&vely  scrutiniz  d  and  consi 
hereafter  as  indicating  the  progress  of  this  government  either 
in  the  march  of  a  well  understood  constitutional  policy,  leading 
us  on  to  an  assured  political  and  commercial  greatness  as  a  free 
people — or  in  thai  broad  and  well  beaten  path,  from  which  the 
wrecks  of  government  thai   fbi  centurii  trewn  it  could 

not  deter  us — a  path  which  lea^B  to  absolutism  in  the  person  of 
lome  mighty  and  unscrupulous  military  genii        Thi        ing  the 
our  decision  is  of  the  mportance,  no<  only  for  to- 

day, but  for  all  time.  Our  action  then'should  be  cl< 
and  leave  no  room  for  doubi  r  views  of  the  compar 

dignity  and  extent    of  the  civil   and  of  tb 
Go\  eminent. 

Mr.  President,  the  question  is  uot  an  a)  ae,  which 

be  postponed  without   detriment.     It   p  ipon   you 

icaJ  question,  requiring  legislati  not 


28 

lacking  that  the  war  power  is  quietly  usurping  the  powers  of 
both  State  and  Confederate  Governments.  All  history  teaches 
us  that,  in  times  of  war,  the  more  modest  and  less  showy  civil 
powers  of  government  yield  and  shrink  before  the  fiercer  bear- 
ing and  more  pretensions  and  swelling  demeanor  of  the  war 
power. 

In  our  own  case,  so  great  is  the  patriotic  fervor  of  the  people 
— so^  ardent  their  devotion  to  the  cause — so  unselfish  their  sac- 
rifices of  property,  of  ease,  aye !  of  life  itself,  in  promotion  of 
the  common  weal — that  they  are  loth  to  question  any  act  that  is 
designed  to  advance  the  common  interest,  no  matter  how  strange 
or  startling  to  them  as  a  mere  question  of  power.  -So  far  has 
this  generous  support  of  our  generals  gone,  that  it  requires  some 
moral  conrage  to  sustain  any  one  who  thinks  it  his  duty  to  say 
"eternal  vigilance  is  the  price  of  liberty."  Hence,  this  gener- 
ous confidence,  while  it  deters  many  a  watchful  patriot  from 
doing  his  whole  duty,  has  actually  been  seized  upon  as  a  de- 
fense by  some  who  have  violated  civil  liberty  in  the  exercise  of 
military  power,  and  their  acts  have  been  justified  because   the 

people  are  quiet. 

But,  Mr.  President,  this  should  not  influence  Senators  in  their 

action  here.  Here  we.  act  upon  our  solemn  oaths  to  see 
to  it  that  the  Republic  suffers  no  detriment.  Here  we  are  as 
watchmen  to  tell  our  constituents  "what  of  the  night."  Here 
we  are  put  upon  our  consciences,  without  fear  or  favor  of  the 
people,  to  do  our  duty — our  whole  duty — not  according  to  the 
"general  welfare,"  nor  to  that  other  dangerous  plea  of  all 
usurpers,  "necessity" — but  according  to  the  written  law  of  the 
Constitution,  which  has  been  placed  in  our  hands  as  our  only 
power  of  attorney  to  act  at  all.  Under  such  influences,  as  one 
of  these  watchmen,  I  say  there  are  already  signs  that  a  change 
from  a  civil  government,  with  constitutional  checks  and  bal- 
ances, to  a  military  absolutism,  is  in  progress.  What  are  the 
facts  to  sustain  so  startling  an  assertion?  I  repeat  a  few  ol 
them : 


29 

A  military  commander  of  a  department  has  declared  martia  1 
law  in  his  district,  and  has  muzzled  the  free  press  within' it. 

The  first  step  towards  despotism  is  invariably  to  suppress 
that  watchful  friend  of  civil  liberty — the  free  press;  and  the 
next  is  to  suppress  the  civil  law  which  would  rescue  a  victim 
from  lawless  arrest  and  check  all  encroachments  upon  the  peo- 
ple's rights. 

Another  military  commander  is  solemnly  charged — and  it  is 
a  matter  of  inquiry  in  this  body — with  having  executed  a  citi- 
zen without  a  trial,    either  under  civil   or  military  law.     The 
same  commander  has  superceded  the  municipal  law  by  his  own 
military  edict;  has  displaced  the  authorities  elected  by  the  peo- 
ple, under  the  sovereign  law  of  their  State,  and  lias  placed 
them  an  officer  of  faiSiOwn  choosing.     And,  as  if  these  startling 
userpations  were  not  sufficient  to  satisfy  this  craving  of  the  mil- 
itary to  drive  all  civil  power  into  obscurity — in  fact,  to  banish 
it  from  the  land — here  in  the  Senate,  the  chosen  temple  of  State 
"eignty,  one  of  the  tribunals  upon  which  it  would  Ik;  sup- 
posed the  civil  power  could  safely  repose,  Senator-  iron:  several 
spyereign   States  are   to   be  found  wdio  deliberately  assert  that 
Congress  can  suspend  and  supercede  all  civil  governments,  both 
Confederate  and  State;  for  they  assert  that,  under  the  cli 
giving  Congress   the    power  to  declare  and  conduct  the  war,  it 
can  coerce  every  officer  as  well  a-   citizen  of  the  Stati 
ments,  and  every  officer  of  th^  Confederate  government, 
the  President,  to  serve  in  the   regular  army  of  the  Confederate 
States  a-  a  soldier,  so  long  as  it  uia_>  I  i  carry  on  the  war. 

Air.  President,  if  there   are    any  within  our  land  so  nil.-!' 
to  desire  to  overthrow  our  present  form  of  government,  fl 
establish  upon  its  ruins  a  central  despotism,  led  bj  a  dictator, 
they  could  not  desire  to  ha\  e  n 

ing  their  unhallowed  designs  than  thes<  Senators  no  doubt  un- 
wittingly lend  to  them.     I 
will  record  it  a-  one  of  tie    most   strange   in  iis  annals,  that  in 


so 

the  first  Senate  assembled  under  a  constitution  which  declares 
that  it  was  formed  by  each  State  "acting  in  its  sovereign  and 
independent  character,"  to  "  establish  justice,  insure  domestic 
tranquility,  and  secure  the  blessings  of  liberty  "  to  themselves 
and  the  posterity  of  their  people — and  in  the  first  Session  of  that 
Senate,  Senators  could  be  found,  in  the  name  of  Liberty,  to  ad- 
vocate the  erection  of  the  military  power  into  such  a  suprema- 
cy that  it  would  absorb  and  destroy  all  the  State  governments, 
and  all  the  legislative  power  of  the  Confederate  government — 
thus  securing  to  the  sword  an  unchecked  dominion  over  a  peo- 
ple who  had  seceded  from  the  Lincoln  usurpation  for  the  sole 
purpose  of  preserving  their  liberties  under  their  several  State 
governments.  Strange,  too,  that  while  thus  severing  their  con- 
nection with  that  Lincoln  usurpation  on  account  of  en- 
croachments upon  the  rights  of  their  citizens,  any  intelligent 
man  should  be  found  comprehending  and  approving  the  nature 
of  the  contest,  who  should  follow,  in  his  zeal  to  prosecute  this 
war,  the  very  footsteps  of  that  Lincoln  despotism.  Lincoln 
and  Seward  proclaimed  that  the  war  power,  the  same  in  the 
Federal  as  in  the  Confederate  constitution,  justified  the  suppres- 
sion of  the  municipal  authorities  of  Baltimore  and  their  im- 
prisonment in  Fort  Lafayette.  They  thought  that  the  press 
was  too  free  in  its  criticism  upon  their  acts,  and  they  crushed 
its  freedom  and  imprisoned  its  editors.  They  thought  that  the 
Judiciary  should  be  subordinate  to  the  war  power,  and  they 
placed  sentinels  at  the  doors  of  the  Judges,  and  disregarded 
their  writs.  They  thought  that  independent  State  governments 
were  stumbling  blocks  in  their  progress  to  military  absolutism 
—were  "absurdities"— and  they  imprisoned  the  members  of  the 
Legislature  of  a  sovereign  State. 

And  what  were  their  special  pleas  for  this  effectual  and  rapid 
transformation  of  a  constitutional  government  into  a  practical 
despotism  which  did  not  allow  its  decrees  to  be  questioned  ? 

One  plea  was  that  so  ardently  advanced  by  the  Senator  from 


81 

Kentucky,  jMr.  Sllftts]  iu  defense  of  the  proposition  to  seizo 
and  coerce  nil  officer  of  the  civil  government  of  a  State  into  the 
army  of  the  Confederacy — that  it  would  be  "absurd"  to  suppose 
that  the  constitution  conferred  upon  Congress  the  power  to 
Wage  war,  and  yet  prohibited  it  from  forcing  a  State  ofiicer  to 
do  duty  as  a  private? 

[Mr.  Sim ms,  of  Ivy. — The  constitution  nowhere  gives  Con- 
gress power  to  raise  and  support  armies  for  the  overthrow  of 
the  State  government,  but  it  does  give  this  power  to  Congress, » 
"  to  protect  each  State  against  invasion."  The  language  of  the 
constitution  is,  "Congress  shall  protect  each  of  them  (the 
States)  against  invasion."  The  war  in  which  we  are  now  en- 
!,  and  the  armies  we  are  now  raising  and  supporting  are 
for  that  very  purpose.  If  the  whole  physical  power  <»f  the  ' 
Confederacy  be  required  in  the  military  service  to  successfully 
"protect  the  State  against  invasion,"  I  hold  that  Congress  not 
only  has  power,  but  that  it  is  made  its  highesl  duty  by  the  con- 
stitution itself,  to  exercise  that  power  to  the  full  extent  de- 
manded by  the  exigencies  of  the  occasion.  I  am,  therefore,  for 
conscripting  magistrates  into  the  military  service,  riot  for  the 
purpose  of  overthrowing  the  State  government,  but  for  the  pur- 
pose of  presenting  their  enslavement  and  overthrow  by  a  for- 
eign invader. 

For  the  constitution  to  declare  "Congress  snail  protect  each 
State  ag:  inst  invation,"  and  then  declare  thai  it  shall  not  have 
power  to  raise  a  sufficient  force  to  do  it,  is  to  say  that  the  - 
constitution  which  declares  that*' Congress  shall   protect  the 
State  against   invasion,"  also  d<  power  to 

do  the  very  thing  it  declares  Congress  shtitt  and  i   do. 

Such  a  construction,  I  hold,  would  be  enough   to  stamp  the  in- 
strument an  absurdity,  and  more  than  e 
thors  wi:h  a   stupidity  [neap  ibfe  of  ui 
purpose.] 

i  continued  i 


It  seems,  Mr.  President,  that  I  did  not  misapprehend  the  Sen- 
ator. He  repeats  that  such  a  limitation  on  the  war  power  as 
will  prevent  the  government  from  forcing  an  officer  of  a  State 
government  to  serve  in  the  army  is  an  absurdity  and  a  weak- 
ness of  which  the  framers  of  the  constitution  could  not  be 
guilty.  Precisely  the  same  reasoning,  if  it  can  be  called  such, 
was  used  by  Lincoln  as  to  our  right  to  secede  from  his  govern- 
ment— and  to  his  right  to  suppress  what  he  called  disloyal  mu- 
nicipalities and  State  governments,  and  to  imprison  judges  and 
editors  of  a  free  press.  Another  plea  which  Lincoln  used  to 
support  his  numerous  usurpations  and  acts  of  tyranny,  was  that 
used  here,  by  the  Senator  from  Georgia — the  necessity  of  pre- 
serving the  National  Life — as  if  there  could  be,  in  a  free  con- 
stitutional government,  a  national  life  that  was  antagonistic  to 
the  sovereign  rights  or. life  of  a  free  State,  or  of  a  free  citizen 
of  such  a  State. 

Another  plea  used  by  the  authorities  of  the  United  States,  in 
their  internal  war  upon  the  personal  rights  of  their  own  citizens 
and  upon  the  sovereign  rights  of  their  own  States,  was  that  so 
vehemently  urged  here  by  the  Senator  from  Mississippi,  [Mr. 
Phelan]  in  behalf  of  his  view  that  this  Congress  can  coerce* 
into  its  armies  all  the  officers  of  the  several  States,  and  even 
the  members  of  this  body — the  unlimited  extent  of  the  power 
of  Congress  over  all  other  powers  delegated  by  the  States  or 
reserved  by  them,  in  the  conduct  of  the  war. 

[Mr.  Piiellan  here  disclaimed  that  he  was  one  of  those  who 
made  a  mere  general  reference  to  the  "  war  power  "  in  showing 
the  canstitutionality  of  any  special  measure.  On  the  contrary 
he  had  disclaimed  any  such  general  reference  •  as  dangerous  in 
principle  and  pointless  as  proof.  A  reference  so  indefinite,  he 
had  declared',  was  of  no  more  force  in  proving  the  constitution- 
ality of  a  special  measure  than  a  similar  reference  by  its  title  to 
any  other  writing.  Every  power,  claimed  under  the  constitu- 
tion, must  be  established  by  special  clauses ;  and  in  his  argu- 


33 

mcnt  to  show  that  Congress  had  power  to  exact  military  ser- 
vice of  a  State  officer,  he  had  referred  to  the  special  clauses  hy 
which,  he  thought,  it  was  granted.] 

Mr.  Yanvicv — T  have  not,  then,  misapprehended  the  Senator. 
He  reasserts  an  unlimited  right  of  Congressto  i  very  citi- 

zen. He  only  explains  that  he  derives  it  from  special  clan 
and  not  from  a  general  reference  to  the  war  power.  I  mention 
these  coincidences  between  statesmen  of  different  and  antago- 
nistic governments.,  not  with  a  view  of  showing  any  common 
design  to  destroy  public  liberty,  but  to  warn  Senators  lesi  in 
their  patriotic  zeal  to  strengthen  their  Government  in  the  pros- 
ecution of  the  war,  they  lay  the  foundation  for  an  eventual  de- 
struction of  the  Government  itself,  and  of  all  that  vast  ma.-s  of- 
personal  and  State  rights  which  it  is  the  sole  object  of  the  war 
t<5  secure  and  perpetuate.  If  the  lessons  of  history,  teaching 
by  example,  are  not  too  weak  to  be  heard  amidst  the  din  of  the 
conflict,  surely  the  more  recent  and  striking  example  furnished 
by  our  enemies  because  of  their  effect  upon  the  struggle,  should 
•  Senators  to  pause  in  any  course  which  would  seem  to  en- 
dorse and  justify  those  usurpations  and  stultify  ourselves  by  pur- 
suing the  like  line  of  conduct.  If  there  is  anything  in,  our  form 
of  government  which  checks  the  uulimi:-  1  expansion  of  the 
war  power,  and  reserves  from  seizure  either  State  or  Con- 
federate civil  rights — and  Senators  will  persist  in  considering 
such  checks  and  reservations  absurdities  pr  weaknesses,  let 
them  consider  that  thus  it  has  been  maturely  nnd  considerately 
determined  by  the  States.  Sufficient  to  every  legislator  should 
it  be  that  over  the  whole  fundamental  power  of  u:ir  complex 
government  it  is  thus  written.  Enough  for  you  should  be  the 
wisest  and  most  potent  of  all  reasoning — if"  est  scripta  lex.  Thus 
is  the  law  written,  and  thus  we  are  sworn  to  observe   t. 

But  we  are  earnestly  adjured  not  to  let  the  c  'and 

in  OUT  way.  when  it  is  i  |    Bo    put    ever;.  ,),.•  field 

in  order  to  resist  Bubjugationjjy*  the  Lincoln  i;    and 


84 

that  when  the  war  is  over  we  can  return  to  the  constitutional 
government.  Mr.  President,  I  here  solemnly  state  my  convic- 
tion, that  it  is  far  better  for  a-  free  .people  to  he  vanquished  in- 
open  combat  with  the  invader  than  voluntarily  to  yield  their 
liberties  raid  their  constitutional  safeguards  to  the  stealthy  pro- 
gress of  legislative  and  executive  usurpations  towards"  the  es- 
tablishment of  a  military  dictatorship.  When  a, people  have 
lost  faith  in  the  power  of  free  government  to  defend  their  lib- 
erties, and  lost  that  high  courage  and  tried  virtue  which  can 
wrestle  with  danger  and  meet  disasters  with  fortitude — -when  in 
cowardly  search  of  ease  they  discard  the  onerous  and  trying 
duties  of  self  government,  and  throw  themselves  and  their  all 
into  the  arms  of  a  vigorous  despotism  of  their  own  choosing, 
in  uiue  cases  out  of  ten  that  people  are  lost— lost  forever.  'The 
recuperative  energy  and  virtue  which  would  be  required  to 
throw'ofFthc  shackles  which  they  had  thus  placed  upon  their  own 
limbs  would  be  wanting,  and  they  would  undergo  ages  of  suf- 
fering, before  a  new  race  of  men  could  be  born  equal  to  a  task 

■ 
of  such  magnitude.     ~No,  sir.     Far  better,  in  every  particular, 

if  they  are  to  be  governed  by  a  despotism — if  free  constitutional 

government  is  to  be  overthrown,  that  it  be  overthrown  by  an 

open  enemy,  and.  if  they  arc  to  be  governed  by  a  despotism,  that 

it  shall  be  after  being  vanquished  in  the  conflict  of  arms;     Vir- 

grow  by  trial;  the  virtues  of  courage,  of  patriotism,  of 

love  of  liberty,  are  not  uprooted  by  the  triumph  of  an  enemy, 

or  by  defeat  at  the  hand  of  a  foe.     The  world's  history  is  full 

:  e  noble  truth — the   stern,  bloody,  practical  truth  which 

poetry  has  seized  and  almost  consecrated  as  its  "Own  by  reason 

of  the  amber  of  sweet  numbers  in  which  it  has  embalmed  it — 
■ 

''  Freedom's  battle  once  begun, 
Bequeathed  by  bleeding  sire  to  eon, 
Though  baffled  oft,  is  ever  won  !" 

There  is  hope  for  a  people  who  are  crushed  by  superior  pow- 
er, in  their  brave  struggle  for  the  right.     There  is  ho  hope  for 


35 

a  people,  so  destitute  of  courage  and  virtue  and 
flee  to  a  despotism  to  render  their  cdrmiet  with  an  invader  the 
easier.    I  therefore  repudiate  all  Idea  that  -..  -.bun- 

don  any  of  the  safeguards  of  our  liberties  in  order 
cessfully  to  contend  with  our  invaders. 

Mr.  President,  I  have  said  that  this  amendment  and  the  prin- 
ciples upon  which  it  lias  been  supported,  if  carried  into  pi 
cal  legislation,  will  destroy   both   the  State  and    Confederate 
•Governments,  and  will  erect  the  Executive  into  a  Military  Dic- 
tatorship. 

I  now  proceed  to  sustain  that  proposition. 

lii  considering  this  question,  it  must  be  borne  in  mind 
this  is  not  a  consolidated  Gov<  rnment  ;  but  thai    the  powers  of 
this  Confederacy  are  limited   and  delegated,   and  that  all  the 
powers  oi'  government  are  distributed  between  tins  and  Che 
several  State  Governments. 

There  are  seven  articles  in  tl,  institution.    I 

assert  that  the  exercise  of  such  powers  by  Congress  will  des 
the  provisions  of  six  of  these  articles,  will  thus  destro; 
various  powers  delegated  to   Com':  i  make  this  a 

stitutional  civil  government,  and   will  leave  the  executive  and 
war  power  without  the  checks  Mid  balai  ■  .  i<ely  provided 

to  keep  it  subordinate  to  the  civil  and  legish  i  r. 

In  the  first  article  are  ]  -  that  the.  Legislature  of  a 

State  has  power  to  pr<  -  fox  men- 

of  the  House  of  Represent  ofthp 

Senate,  and  prescribe  the  times,   places  and  maimer  of  I 
election;  that  the  Mate  execuUv<    ehaHiesue  writs  of  ?le< 
to  till  \  aoancies  in  House  of  tl 
to  a  State  the  right  to  keep  tr% 

war.  Every  one  of  these  pro\  i.-'e  ■  ould  b    desti 

by  (  ■ 

[Mr.  Hill]  ai  "  i  M 


36 

lax],  the  power  to  place  in  the  army  for  three  years  the  mem- 
bers of  the  State  Legislature  and  the  Executive,  through  whose 
action  alone  can  Representatives  and  Senators  be  elected,  and 
the  power  to  enroll  as  conscripts  the  militia  officers  of  a  State, 
and  the  militia,  when  called  out  by  a  State  to  resist  its  invasion. 

Texas  has  .a  regiment  of  rangers  now  in  her  service  to  pro- 
tect her  borders  ;  Virginia  has  a  large  body  of  her  militia  to 
protect  her  insulted  territory.  In  my  opinion,  Congress  cannot 
touch  a  man  of  either  under  the  conscript  law ;  although  I  be- 
lieve that  Congress  can  provide  for  calling  forth  the  militia  to 
repel  invasion ;  and  in  such  a  case  the  States  would  be  bound 
to  send  the  militia  in  obedience  to  that  clearly  delegated  power. 

There  is  another  class  of  provisions  in  the  first  article  which 
the  assumption  of  such  powers  by  Congress  as  are  contended  for 
would  render  null  and  devoid.  These  Senators  say  distinctly 
that  Congress  has  power  to  enroll  every  member  of  Congress 
as  privates  in  the  army  for  three  years  or  more.  Let  us  see  the 
effect.  The  1st  article  provides  that  all  the  legislative  power 
shall  be  vested  in  Congress;  that  it  shall  meet  once  a  year;  that 
the  House  alone  shall  impeach  an  officer;  that  the  Senate  shall 
trv  impeachments  ;  that  members,  shall  be  free  from  civil  or  mil- 
itary arrests — save  for  treason,  felony  or  breach  of  the  peace 
and  that  all  bills  for  raising  revenue  shall  originate  in  the  House. 
In  addition  to  all  this,  there  are  nineteen  distinct  powers  spe- 
cially delegated  to  Congress  in  that  article,  six  of  which  relate 
to  the  Avar  power.  To  enroll  members  of  Congress  in  the  army 
would  destroy  the  legislative  branch  of  the  Government,  and 
would  render  Congress  unable  to  exercise  those  powers  and 
perform  those  duties;  woidd  take  from  the  people  of  the  States 
their  voice  in  managing  the  General  Government;  would  take 
from  the  States  the  representation  of  their  sovereignty  in  this 
Government;  would  place  the  revenue  in  the  hands  of  the  Ex- 
ecutive— would  give  him  the  purse  as  well  as  the  sword.  Fur- 
ther, the   suppression  of  Congress,  by  its   enrollment  in  the 


.37 

army,  would  destroy  the  only  power  which  colild  impeach  and 
try  the  Executive  for  usurpation. 

Let  us  now  examine  the  2d  article.  It  provides  that  the  Pres- 
ident shall  be elected  b#  electors  every  six  years,  chosen  as  the 
State  Legislature  may  direct.  It,  gives  to  him  the  powjer  ofap*- 
pointment  oi  officers  subjecl  to  confirmation  or  rejection  1>; 
Senate.  I  To  cap  make  treaties  bj  and  with  trie  advice  a)fid  con- 
sent) o£  the;  Senate.  Hi-  slia',1  gfwe  information  of. the' state  of 
the  Confederacy  to  Cougr<  ss.  lit-  shall  be  removed  from  ■ 
by  impeachment.  But  these  Senators  say  that  Congress  has 
tiic  power  to  destroy  the  State  Legislatures,  which  prescribe 
the  appointment  of  electors — lias  power  to  destroy  the  Senate, 
which  can  reject  his  appointees,  and  can  reject  his  treaties,  and 
which  can  remove  him  from  office  by  impeachment.  \\  hen  all 
this  has  been  done,  there  will  be  an  Executive  Without  the  check 
of  the  legislative  power,  without  the  fear  of  the  high  court  of 
impeachment — an  Executive  to  raise  money  at  will — to  put  up 
and  put  down  at  will — to  make  alliances  with  foreign  powers, 
to  maintain  him  in  his  one  man  power  without  consultation  or 
draw  hark  from  any  quarter,  and  to  keep  the  control  of  Govern- 
ment, as  there  will  he  no  power  in  existence. to  elect  his 'suc- 
cessor and  dispute  his  term  of  office. 

Let  us  examine  the  8d  article!  it  provides  that  tin- judicial 
power  shall  be  vested  in  suprejnfe  and  other  COUrl  J,  and  that 
judges  shall  hold  office  during  good  behavior — that  they  shall 
preside  over  civil  and  criminal  trials  of  prescribed  charact 

Dqt  tnese  Senators,  d  thai    Cong  power  to 

pend  that  article— to  render  it  of  no  effect — to  take  tiie  j.. 
from  the  bench  and  enroll  them  as  soldiers  under  military  rule 
— to  deprive  them  of  the  d  nd  privil  ,'n<  Jr  high 

office,  no  matter  how  irreproachable  their  life!     The  < 

pured  to  preside  iu  the  I 
by  impeachment.     But  althougl 
members  to  destroy  the  civil  fun  ient,  and 


38 

have  constitutionally  arrested  and  forced  State  authorities  and 
all  Congress  and  the  Judiciary  into  his  army,  and  therefore  had 
.assumed  all  the  powers  of  government  and  be  liable  to  be  tried 
for  treason,  there  will  be  found  no  House  to  impeach — no  Sen- 
ate to  try  him — no  Chief  Justice  to  preside — all  will  be  forced 
under-  the  principles  so  recklessly  avowed  here  by  the  Senators 
from  Georgia  [Mr.  Hill],  from  Mississippi  [Mr.  Phelan],  and 
from  Kentucky  [Mr.  Sjmms],  into  subserviency  under  the  mailed 
hand  of  a  military  Dictator,  that  has  grown  into  being  under 
the  pleas  of  "  necessity,"  and  of  the  "  unlimited  "  nature  of 
the    war  power. 

Under  the  4th  article  the  Confederate  States  guarantee  to 
every  Slate  a  republican  form  of  government,  and  upon  appli- 
cation of  the  Executive  they  protect  it  against  domestic  vio- 
lence. Under  the  principles  of  these  Senators,  what  becomes 
of  this  valuable  provision?  The  Government  of  the  Confede- 
rate Slates,  so  far  from  affording  that  guarantee,  will  have  de- 
i  d  every  vestige  of  republicanism  in  both  State  and  Gen- 
eral Government.  It  .will  have  destroyed  the  Legislature,  the 
Executive  and  the  Judiciary  of  each  State — it  will  have  left  it 
a  prey  to  aunivhy,  or^  what  is  more  probable,  each  will  have 
become  a  province  of  a  military  ruler,  governed  by  one  of  his 
traps. 

The  spirit,  the  vitality,  the  essence  of  our  republican  system, 
will  in  every  particular  have  b  $  en  effectually  crushed.  And 
when,  in  sueh  an  event  the  citizen—not  then,  but  once  the  cit- 
izen of  a  free  government — shall  seek  the  sacred  places  where 
;.:ite  sovereignty  was  enshrined,  and  shall  find  the  Execu- 
tive chair  vacant,  and  the  mace  of  Executive  authority  broken 
— when  he  shall  stray  still  further  into  the  temple  of  State  sov- 
ereignty and  find  the  bench  of  justice  no  longer  occupied,  and  the 
sacred  ermine  torn  and  trampled  under  the.feet  of  military  des- 
potism— the  very  altars  of  his  liberties  desecrated  and  cast 
down — pray  tell  us,  sir,  what  it  will  be  to  him  that  you  did  this 


39 

from  "necesssity" — to  preserve  the  National  life — from  a  fear 
of  Lincoln  hordes — from  an  opinion  that  yon  had  a  right  to  do 
it — what  to  him.  will  be  yonr  desire  to  be  successful  in  war, 
when  success  in  war  is  based  on  a  destruction  of  the  very  rights 
for  which  alone  he  was  willing  to  incur  its  horrors  and  its  dan- 
gers ? 

I  pass  over  the  5th  Article  as  of  comparatively  little  impor- 
tance to  the  6th.  The  last  two  provisions  are  the  most  impor- 
tant in  the  whole  Constitution— yet  they  were  not  devised  by 
the  wise  men  who  framed  thai  instrument  in  Convention.  After 
they  had  sent  it  to  the  States  tor  their  consideration,  a  citizen 
of  this  ancient  Dominion,  far  sighted  and  with  a  thorough 
knowledge  of  government  and  its  workings  as  taught  in  histo- 
ry, had  them,  among*!  others,  proposed  as  amendments  to  the 
Constitution,  and  they  were  adopted.  They  constitute  the 
grand  beacon  lights  to  every  benighted  or  puzzled  statesman 
by  which  to  guide  the  bark  '•>-  their  light  there  can 

be  no  extfuse  even  for  a  blind  mail  for  not  correctly  reading  this 
Constitution.     They  speak  a   !  u  T  warning,  of  instruc- 

tion and  reproof  to  the  Senator  from   Mississippi  (Mr.  Phelan) 
who  iron:  special    clau  iced  the  power  of  Con- 

■oy  or  render  nul  '  no  effect  nearly  every 

other  delegated  power  in  tl  :it,  and  to  disparage,  if 

not  destroy,  nearly  every  vig  led  and  reserved  by  "the 

Stat'         i        d  them : 

"The  enumeration  in  the  Cottitutitfn  of  ccrtaii  -hall 

not  be  construed  to   d  s  others  retail  .!  l>y  the 

■ 

'•The  powers  not  d  lei  al e 

'Constitution,  nor  prohibit*  ed  to 

pectivelj .  bet 

■  w  1  pal  it  to  the  Sen:  le.  a  few  sp 

as  to  the  oonduqt  of  i  y  the 

Senators  who    have  a  l\o.  ivlmcnt  a  oy-OB 


40 

disparage  the  right  of  State  Government  which  was  '  retained ' 
by  the  people  of  the  several  States?"  Can  those  Senators  de- 
ny that  they  have  done  so  ?  Have  they  not  so  construed  the 
few  war  powers  as  effectually  to  suppress  the  judiciary,  the 
legislative  and  the  Executive  departments  of  the  State  Govern- 
ments, if  their  principles  should  be  fully  acted  upon  by  this 
Congress  ?  Does  any  Senator  pretend  that  the  power  of  legis- 
lation upon  domestic  relations  among  citizens  of  a  State  has 
been  delegated  to  Congress,  or  has  been  prohibited  by  the 
States?  Not  one.  Then  it  is  a  reserved  power  of  the  States 
respectively.  And  if  a  reserve  power,  then,  says  the  Constitu- 
tion, "  You  shall  not  construe  certain  delegated  rights,"  &c. 
Yet  Senators  have,  without  due  reflection,  I  must  suppose, 
done  that  very  prohibited  thing. 

I  have  thus,  Mr.  President,  performed  my  task.  I  have 
shown  that  the  construction  put  by  some  Senators  upon  this 
war  power  is  utterly  at  variance  with  six  of  the  seven  articles 
of  the  Constitution,  and,  if  adopted  and  acted  upon  by  Con- 
gress, will  crush  all  civil  power,  destroy  tAVO  out  of  the  three 
great  departments  of  the  Government — namely :  the  legisla- 
tive and  judicial  departments — will  also  destroy  all  the  State 
Governments  and  will  erect  the  limited  Constitutional  Execu- 
tive into  an  absolute  despotism — a  pure  military  dictatorship. 
As  I  have  so  often  alluded  to  the  Executive,  I  here  take  occa- 
sion to  say  that,  though  differing  on  some  matters  with  the 
President,  I  have  no  fears  of  his  assuming  unconstitutional 
power.  Educated  and  living  a  strict  constructionist,  I  believe 
his  heart  sympathises  with  his  head,  and  that  no  more  deter- 
mined opponent  of  usurpation  will  be  found  in  the  Confederacy. 
What  is  the  reason  urged  for  this  assumption  by  Congress 
of  unlimited  war  power  ?  Necessity — blood-covered,  liberty- 
despoiling,  "necessity" — stained  with  the  crimes  of  ages,  and 
yet  dripping  with  the  fresher  blood  of  a  republic  which,  it 
may  be  no  treason  to  wish,  had  received  a  happier  fate. 


41 

But,  Mr.  President,  "necessity"  cannot  justly  be  urged  at 
this  time  for  the  perpetration  of  so  heinous  a  crime  against  our 
own  liberties — none  more  unpropitious  for  such  an  excuse  as 
this  bright  period  in  the  history  of  the  war.  Though  hard 
pressed  in  the  spring,  when  surprised  and  unprepared',  the  won- 
derful recuperative  energy  and  ready  resources  of  the  Southern 
people  have  raised  and  equipped  in  army  in  the  very  presence 
of  the  three  quarters  of  a  million  of  armed  and  disciplined  en- 
emies ;  and  those  armies  have,  driven  back  the  enemy  from  all 
his  fortified  holds  on  our  borders,  and  have  routed  him  on  sev- 
eral well  contested  tields,  and  now  hang  threatening  over  his 
capitol,  and  along  his  undefended  frontier.  Yet,  strange  to  say, 
this  is  the  hour  chosen  for  an  onslaught  upon  the  dearest  prin- 
ciples of  the  Southern  people — upon  the  chief  principle  for 
which  they  separated  from  the  Government  of  the  United 
States,  and  upon  which  they  have  built  up  this  Confederacy — 
the  right  to  preserve  intact  the  reserved  rights  of  the  States — 
the  right  to  resist  usurpation  of  those  rights  by  the  Federal 
Government. 

Mr.  President,  I  do  not  believe  we  are  weakened  for  Avar  by 
too  much  constitutional  liberty.  I  have  full  faith  in  this  com- 
plicated and  limited  Government  to  carry  us  safely  through 
this  -war.  Its  strength,  however,  lies  in  the  most  careful  obser- 
vance of  the  rights  of  each  department  of  the  Government  and 
of  each  State.  Its  greatest,  weakness  is  in  a  disposition  I 
sume  powers  from  a  mischievous  and  fallacious  idea  that  they 
are  necessary  to  our  safety.  Such  assumption  is  more  to  be 
feared,  more  dangerous,  in  my  opinion,  than  are  a  million  of 
Yankee  bayonets.  Let  there  be  mutual  respect  fur  the  rights 
of  each  and  all— and  there  will  result  a  harmony  and  an  energy 
and  a  power  that  will  secure  to  u>  all  we*value  in  constitutional 
government. 


APPOINTMENT  OF  BRIGADIER  GENERALS. 

In  the  Senate,  September  8th,  Mr.  Yancey  introduced  a 
bill  to  regulate  the  nomination  and  appointment  of  Brigadier 
Generals,  so  as  to  apportion  them  among  the  several  Statas  ac- 
cording to  the  number  of  troops  furnished  by  each.  The  bill 
was  referred  to  the  Judiciary  Committee,  who  reported  it  back 
with  the  following  report: 

The  Committee  on  the  Judiciary,  to  whom  was  referred  "  A 
Bill  to  regulate  the  nomination  and  appointment  of  Brigadier 
Generals,"  have  had  the  sama  under  consideration  and  ask  leave 
to  report : 

The  Constitution  provides  that  the  President  "  shall  nomi- 
nate, and  by  and  with  the  advice  and  consent  of  the  Senate, 
shall  appoint  ambassadors,  other  public  ministers  and  consuls, 
judges  of  the  Supreme  Court,  and  all  other  officers  of  the  Con- 
federate States,  whose  appointments  are  not  herein  otherwise 
provided  for,  and  which  shall  be  established  by  law." 

By  this  clause  of  the  Constitution,  the  right  of  nomination, 
in  the  opinion  of  the  committee,  is  given  exclusively  to  the 
President.  The  power  of  appointment  is  given  to  the  Presi- 
dent, controlled  by  the  advice  and  consent  of  the  Senate  only. 
In  the  matter  of  appointments,  therefore,  the  Senate  is  an  advi- 
sory Executive  body,  and  in  that  capacity  may  exercise  a  regu- 
lating and  restraining  influence,  power  and  discretion ;  and  may 
appropriately  take  into  consideration  the  relation  of  the  officer 
proposed  to  the  troops  to  be  commanded,  and  to  the  citizens 
for  whose  immediate  benefit  his  functions  are  to  be  employed. 

But  the  Congress,  as  a  legislative  body,  consisting  of  the  Sen- 
ate and  House  of  Representatives,  have  no  constitutional  au- 
thority, in  the  opinion  of  the  committee,  to  regulate  or  interfere 
with  executive  discretion  in  making  nominations  or  appoint- 
ments. The  control  of  the  Congress  over  appointments  is  con- 
fined to  the  authority  of  vesting,  by  law,  "the  appointment  of 
such  inferior  officers,  as  they  may  think  proper,  in  the  President 
alone,  hi  the  courts  of  law,  or  in  the  heads  of  departments." 

For  these  reasons  the  committee  respectfully  report  back  the 
bill  mentioned,  with  a  recommendation  that  it  do  not  pass. 

BENJ.  H.  HILL, 
s  Chairman. 


43 

On  the  22d  September,  the  question  being  on  concurring  in 
the  report  ot  the  committee,  Mr.  Yancey  spoke  as  follows ; 

Mr.  President:  The  appointment  of  Brigadier-Generals 
from  a  particular  class,  as  a  general  rule,  and  the  disregard 
shown  to  the  claims  of  the  States  to  a  proper  distribution  of 
those  officers  among  them,  has  induced  me  to  offer  this  bill. 
The  Judiciary  committee  has  reported  it  to  be  unconstitutional, 
because  it  restricts  the  right  of  the  President  to  appoint.  I  am 
informed  that  there  are  live  members  of  that  committee  and 
that  but  three  met,  and  but  two  fv/oted  the  report.  (It  was 
here  explained  that  while  this  was  true,  yet  the  two  absent 
members  endorsed  the  report).  I  have  alluded  to  this  for  one 
purpose  only,  that  if  the'  report  is  eoncurred  in,  and  it  should 
ifter  be  (inott'd  as  a  precedent,  it  shall  be  nnderstood  that 
it  received  the  deliberate  idvestigation  of  but  two  of  the  five 
members  of  the  committee. 

I  am  satisfied  that  the  report  is  not  sound  in  argument ;  and 
ig  up  cfan  important  power  by  the  I 
iative  body,  I  would  be  untrue  to  that  conviction  if '  I  did  net 
attempt  to  sustain  my   convictions   by   sueh   argument  as  T  can 
bring  to  bear   upon  tlfe   subject.     Before  I  sit  down,  how 
I  shall  off  statute,  proposing  the  bill  as  an  amendment  to 

the  act  creating  the  otiieeof  Brigadier-General ;  for  in  that  form 
it  will  obviate   some   objections   made"   against  it — and  I  am  in- 
debted to  tlie   Senator    from   Louisiana  [Mr.   Semmes]   for  the 
•n. 
The  Judiciary  Committee   offer  no  argument  in  their  report. 
.  simply  assert  thai    Congress  has  no  legislative  auth 
sutive  discretion  in  inakh  g  nominations. 
I  j<  '  with  that  committee.     "What  i-  the  pt)W< 

:•  military  officei    r      Ii  is  t>>  be  found  in  the  pow< 
ics — and  in  the   power   to   make  rule    for  th< 

ilatioa   of  the  land  forces,     Thai  power  fuyo 
organization,  the  arming,  fhe   discipline,  and  the  ] 


44 

the  army.  In  these  is  the  power  to  create  offices  necessary  to 
the  proper  government  and  conduct  of  the  army.  In  these 
alone  lies  the  power  to  declare  there  shall  be  Generals,  major 
and  brigadier,  Colonels,  Majors,  Captains  and  Lieutenants.  The 
power  is  a  legislative,  not  an  executive  power,  and  it  is  delega- 
ted in  the  article  in  the  Constitution  declaring  the  powers  of 
Congress.  The  power  to  create  an  office  involves  the  power  to 
define  it — to  declare  the  condition  and  terms  iipon  which  it 
shall  exist — and  without  which  it  shall  not  be  an  office.  It  is  a 
power  anterior  to  and  underlying  the  executive  power  to  nomi- 
nate a  person  to  fill  it.  Unless  the  office  is  created,  the  Presi- 
dent has  no  power  to  nominate.  That  power  has  in  fact  no  ac- 
tive existence  until  Congress  has  created  the  office— and  when 
the  office  is  created,  the  only  power  of  the  President  to  nomi- 
nate, its  scope  and  extent,  is  to  be  determined  by  the  law  of 
Congress  creating  the  office.  It  has  to  be  exercised  according 
to  the  legislative  will.  It  is  limited  and  defined  in  fact  by  the 
terms  of  the  law,  declaring  what  the  office  is,  and  within  what 
scope  the  nominating  power  is  to  be  exercised. 

The  nominating  power  is  contained  in  but  one  clause  in  the 
Constitution,  and  that  reads  thus : 

"He  shall  nominate  by  and  with  .the  advice  and  consent  of 
the  Senate,  *  *  *  Judges  of  the  Supreme  Court 
and  all  other  officers  of  the  Confederate  States,  whose  appoint- 
ments are  not  herein  otherwise  provided  for,  and  which  shall 
be  established  by  law."  His  power  of  nomination  then  can  only 
exist  by  virtue  of  law.  It  is  limited  by  the  terms  of  the  law. 
The  office  to  which  he  nominates  only  exists  in  and  by  the  terms 
of  the  law.  Pray  tell  me  what  limit  exists  upon  the  legislative 
will  to  define  and  declare  the  office?  Will  any  Senator  rise  in 
his  place  and  declare  it  to  be  incompetent  in  creating  an  office 
to  fix  as  a  qualification  to  holding  it  that  the  person  nominated 
shall  be  a  citizen  of  the  Confederate  States  ?  I  pause  for  a  re- 
ply.    There  is  none.     If,  then,  it  is  within  our  legislative  pro- 


45 

vince  to  say  that  the  President  shrill,  in  making  nominations, 
confine  them  to  citizens  of  the  Confederate  States,  why  can  Ave 
not  confine  him  in  nominating  brigadiers  to  command  brigades 
to  the  citizens  of  the  State  that  furnishes  the  troops  of  that 
brigade?  The  Senator  from  Georgia  [Mr.  Hill]  says— and  the 
Senator  from  South  Carolina  [Mr.  Orr]  repeats  it,  thai  if  Con- 
gress can  confine  the  nomination  to  a  Slate,  what  prevents  il 
from  confining  it  to  a  comity — to  a  toWn  —ami  in  fact  to  a  house 
in  that  town.  There  are  very  few  things,  Mr.  President,  that 
the  wit  of  a  Philadelphia  or  Georgia  lawyer  may  not  ridicule, 
by  running  it  into  extreme  illustrations.  The  Cross  itself  has 
been  its  subject.  It  is  no  fair  mode  of  dealing  with  a  question 
in  such  a  place,  at  least,  as  the  Senate.  The  fact  with  which 
the  Senate  deals  is  that  it  is  proposed  to  fix  citizenship  of  a 
State  as  a  qualification  to  command  a  brigade  of  troops  raised 
in  that  State,  h  that  unconstitutional?  This  Con nfress  con- 
stitutionally knows  nothing  of  counties,  or  towns,  or  houses  in 
a  State,  but  it  does  know  a  State.  Tt  is  Imilt  up  by  and  rests 
upon  States — and  it  can  as  well  fix:  qualification  for  an  office  to 
be  citizenship  in  a  State — as  to  be  citizenship  in  the  Confederate 
States. 

It  rests  upon  those  who  hold  the  eonlr  ry  position  to  bring 
forward  some  clause  in  the  Constitution  which  denies  it,  or 
some  sound  argument  againM  it. 

The  Senator  from  Mississippi  [Mr.  Piikt.an],  who  always 
meets  an  argument  with  fairness  and  gravity,  says  thai  if,  under 
the  clause  to  govern  the  army,  Congress  can  prescribes  qualifi- 
cation for  a  nominee,  what  will  prevent  Congress,  under  the* 
16th  clause  of  section  8,  Art.  I.  of  the  Constitution,  from  pre- 
scribing qualifications  for  offices  in  the  militia,  hiasmnch  as  the 
clause  gis  es  tq  ( longress  the  power  to  go>  ern  the  militia  ?  The 
question  is  fair  and  pertinent.  The  answer  is  clear,  and,  to  toy 
mind,  satisfactory.  It  i  this:  The  I6th  clause,  while  it  gives 
Congress  power   t<>   provide   for   governing    the  militia    when 


46 

called  m to  the  service  of  the  Confederate  States,  contains  a  re 
striction  upon  that  power  in  the  reservation  to  the  States  cf  the 
appointment  of  the  officers.  Without  this  reservation,  the  power 
to  govern  would  be  the  same  under  both  clauses. 

[I  believe,  however,  that  Congress,  under  the  power  to  or- 
ganize the  militia,  has  the  power  to  prescribe  the  qualifications 
for  officers.] 

The  spirit  of  the  Constitution  also  calls  for  this  legislation. 
By  it  when  the  militia  of  the  States  are  called  into  our  service, 
their  brigades,  as  well  as  their  regiments,  are  bo  be  officered 
from  the  State  in  which  the  brigades  are  raised.  Now,  the  Sen- 
ators from  Virginia  have  both  declared  that  they  find  the  only 
constitutional  power  to  pass  the  conscript  act  in  the  power  to. 
call  for  the  militia,  and  one  of  those  Senators  [Mr.  Hunter] 
declared  that  act  to  be  a  substantial,  though  not  literal,  compli- 
ance with  that  provision  in  the  Constitution.  To  these  Sena- 
tors, then,  this  bill  addresses  itself  with  peculiar  force.  If  that 
law  rests  on  the  militia  clause,  then  it  is  imperative  with  them, 
and  all  who  think  with  them,  to  vote  for  the  bill,  because  it  so 
far  complies  with  that  provision  as  to  require  State  troops  to  be 
officered  from  the  State  from  which  they  come.  Although  it  is 
true  that  the  States  do  not  make  the  appointment  under  this 
bill,  yet  the  Senator  from  Virginia  [Mr.  Hunter]  cannot  make 
that  an  objection,  inasmuch  as  he  voted  for  the  conscript  act, 
which,  in  cases  of  vacancies,  gives  to  the  President  the  power 
to  nominate,  but  restricts  his  nomination  to  the  corps  in  Which 
the  vacancy  occurs. 

Thus  much,  Mr.  President,  for  the  constitutional  argument. 
There  is  another  view  of  the  case,  derived  from  precedent, 
Which,  is  persuasively  in  favor  of  the  bill  and  against  the  posi- 
tions of  the  committee.  The  constitutional  power  of  Congress 
to  restrict  nominations  by  law  has  never  before  been  questioned. 
Under  the  late  Federal  Union  a  law  was  passed  creating  near 
three  hundred  .offices,  to  be  filled  by  the  appointment  of  cadets 


47 

rit  West  Point.    The  law,  while  creating  the  offrc&  atfd  fhftng 
the  salary,  made  it  uieumbent  upon  the  President  to  appoltil 
many  from  each  State  as   thai  State  had  representatives.     The 
office  of  commandant  was  created.  The  law  creating  it  declared 
that  he  should  be  nominated  from   one  of  four  persons— cither 
thc  instructor   of  infantry,   or   of  cavalry,  or  of  artillery,  or  ..t' 
engineers.    The  office  of  annual  visitors  to   the   academy  was 
created*.     The  law    declared    that   the   President  should  - 
ihemf-o,,;  om-fialf  of  the  States  alternately.     So  rrfdeh  for  the 
late  tJnion.     These  laws  were  never   questioned-  upon  the  I 
of  unconstitutionality.     Even  in  our  brief  ca.ieer  wo  have  simi- 
lar precadentB.     At  the   last  session,  after   an  elaborate  debate 
In  this  body,  the  conscript  act    was  passed.     One  Of  i1 
ions  was,  that  wh.cn  vacancies   in    regimental    ofh  ■  rrcd, 

they  should  be  tilled    by   nomination   of  the   President,  bf  and 
with  the  advice  and  consent  of  the  Senate.— but  he  has 
rj  In;  tMlaw  to   the  rc<jh  ni  htm    which  the  vacancy   ooarr.Ml. 
The  law   received    the    sanction  of  both    Hon- -ex,  and  was  ap- 
proved by  the  President,  ami  though  the  Constitutionality  of 
the  act  iu  other   particulars   was   freely  discussed,  this    reM ra- 
tion was  not  declared  to  be  unconstitutional  1«y  any  one.     The 
same  provision  has  been  re-enacted  ami  reatlirmed  in  i»rovisions 
oi  the  new  conscript  bill   in   both   Houses   at  this  fcessibn,  and 
yet,    tM!     restriction   has  not   been  touched   upon  as  me 
tional.     [Mr.  Skmmks  said:  The  Senate  at  its   last  set  ' 
'     ted  the  office  of  Admiral,  and  reurieted    the  President  iu  nomi- 
nating to  till  it  "to  the  grade  immediately  Mow  the    one  to  be 
felted.'*'     It  is  a  case  in  illustration  of  the  argument  of  the  Sen- 
ator from  Alabama). 

I  come  now,  Mr.  President,  to  the  policy  Of  legislating  ofi  the 
matter.    The  Preaid&t,  an  etticated  militarj  man,  with  dtowell 

known  peculiar  views  en-endend  by    such  an  educftth     , 
tohaNe.'online.l  his    nomination-     for    Brigadier    Genefals,  in  a 

^,...  !gree,tO  Wem   Point*  ;  r1b0 


48 

for  the  fact  that  his  nominations  preponderate  so  largely  from 
Virginia,  with  whose  young  men  that  institution  has  always 
been  a  favorite.  Having  an  unlimited  power  of  nomination — 
Congress  not  having  indicated  a  will  to  restrict  it,  he  has  cho- 
sen to  exercise  it  according  to  his  own  ideas  of  men — to  which 
of  course  no  one  has  a  right  to  object.  I  have  no  idea  that  the 
President  has  dcs'gned  to  work  an  injustice  to  any  men  or  any 
State,  but  in  my  opinion  the  practical  working  of  the  present 
system  has  operated  that  injustice — in  my  State  a  marked  injus- 
tice. I  understand  that  there  are  about  one  hundred  and  twenty 
Brigadier  Generals  in  the  army.  Just  before  the  close  of  the 
last  session  I  called  at  the  office  of  the  Adjutrmt  General,  and 
obtained  a  list  of  the  brigadiers.  By  it  I  found  that  Virginia 
had  twenty-nine.  (Mr.  Pkeston  corrected  Mr.  Y.,  and  said  by 
a  corrected  statement,  it  was  ascertained  that  Virginia  had  but 
seventeen). 

I  do  not  desire  to  be  considered  as  begrudging  these  honors 
-to  the  sons  of  Virginia;  I  hope  she  will  get  all  that  is  her  due, 
but  she  has  certainly  in  this  matter  more  than  her  proportionate 
share.  For  instance  I  believe  Alabama  had  more  regiments  in 
the  Provisional  Army  of  the  Confederate  States  than  Virginia 
has  ever  had.  She  has  furnished,  as  I  have  been  informed,  sixty- 
five  regiments  of  infantry,  several  of  cavalry,  several  indepen- 
dent battalions,  and  about  one  hundred  companies  which  have 
joined  regiments  out  of  the  State — yet  Virginia  has,  according 
to  an  admitted  statement,  seventeen  Brigadier  Generals,  and 
Alabama  has  but  four,  though  she  was  the  first  to  arm.  Tennes- 
see, I  am  told,  with  about  the  same  number,  of  troops  as  Ala- 
bama, has  only  four  or  five  Brigadier  Generals — other  States 
are  similarly  treated.  Besides  those  now  commissioned,  as  if 
to  deepen  the  disparity  and  to  originate  and  perpetuate  State 
jealousy,  there  are  now  in  command  of  brigades,  with,  a  view 
doubtless  to  nominations,  six  more  Virginians — while  out  of  the 
gallant  men   of  Florida,  Texas,   Georgia,  Arkansas,  Tennessee, 


49 

Missouri,  Mississippi,  and  of  Alabama,  but  one  1ms  been  se- 
lected from  each  State  as  worthy  of  that  position.  What  is 
the  cause  of  this?  Who  will  rise  here  and  assert  that  the  real 
reason  is  that  there  is  no  mil  tary  talent  in  these  States  from 
which  to  select  Brigadiers?  As  for  myself  I  scout  the  idea. 
As  far"  as  Alabama  is  concerned,  the  history  of  the  war  dis- 
proves it.  From  the  first  hostile  movement  by  the  troops  of 
that  State  upon  Pensacola,  to  the  lasi  great  battle  at Sharpsburg, 
there  has  not  been  a  threat  battle  fought  upon  this  side  of  the 
Mississippi  that  her  sons*  have  not,  both  as  privates  and  regi- 
mental commanders,  demonstrated  that  they  possess,  in  a  high 
degree,  military  spirit,  genius  and  endurance.  In  the  first  great 
clash  of  arms  upon  the  field  of  Manassas,  her  celebrated  Fourth, 
by  the  testimony  of  the  enemy's  official  report,  broke  four  regi- 
ments of  the  foe  in  four  different  charges  upon  that  gallant  re- 
giment. In  one  of  the  recent  and  most  important  battles  before 
Richmond,  though  having  a  less  number  engaged  than  at  least 
two  other  States,  the  killed  and  wounded  of  the  Alabama  regi- 
ments far  outnumbered  those  from  any  other  State.  In  the 
name  of  her  gallant  dead — her  Lomax,  her  Bullock,  her  Jones, 
her  Woodward,  her  Moore,  her  Hale,  her  Baine — in  the  name 
of  her  gallant  but  neglected  and  disparaged  living,  who  now 
command  her  regiments,  I  pronounce  the  bare  idea  that  her 
sons  have  not  and  do  not  furnish  military  genius  and  skill  for 
Brigadier  Generals  to  be  a  slander  and  an  outrage  upon  her 
character. 

If  such  an  assertion  could  be  truthfully  made  then  would 
your  militia  and  volunteer  systems  l>e  a  failure.  Baft  as  long  as 
the  campaign  in  Mexico  and  this  war  shall  be  known  in  history 
that  assertion  will  never  be  made.  Sir,  the  history  o£  the  world 
furnishes  no  higher  instances  of  skill,  valor  and  endurance  than 
have  been  almost  daily  furnished  by  the  volunteers  who  com- 
pose our  armies.  If  the  war  lingered  apace  at  one  time,  the 
fault  was  in  our  commanders,  not  in  our  men.     Hrcd  in  military 


50 

schools,  accustomed  to   command  regulars,  they  had  no  confi- 
dence in  volunteers.     Partaking  of  the  prejudices  of  their  class 
the  world  over,  they  had  not  studied  the  great  changes  pro- 
duced in  the  character  of  the  American  agriculturist  by  free  in- 
stitutions— and  they  had  but  little  confidence  in  the  ability  of 
volunteers  to  stand  fatigue  and  tremendous  and  prolonged  fire 
of  artillery  and  small  arms.     They,  therefore,   were  over    cau- 
tious, and  more  disposed  to  retreat  and   entrench  than  to  ad- 
vance and  fight.  It  is  said  that  during  the  most  dreadful  of  the 
days  on  which  the  battles  around  this  capital  were  raging,  Gen. 
Lee  was  walking,  with   grave  cast   of  .countenance,  back   and 
forth  at  his  position  on  the  field  ;  and  when  the  murderous  vol- 
leys were  thundering  most  heavily  on  the  ear,  turned  to  a  vete- 
ran General  near  him,  and  asked  significantly,  "  Can  'ihey  stand 
this?"     "I  think  so,"  was  the  pithy  and  dry  reply.     And  they 
did  stand  it  as  bravely  and  heroically  as  men  ever  stood  in  bat- 
tle, and  magnificently  drove  a  superior  and  better  disciplined 
foe  before  them.     From  that  time  to  this,  that  great  General, 
whom  the  country   had  thought  too  cautious,  not  sufficiently 
enterprising,  has  been  the  most  enterprising  and  successful  Gen- 
eral on  the  continent,  and  I  believe  is  so  of  the  age.  He  doubts 
no  longer.  He  knows  the  material  he  commands  and  they  know 
him,  and  the  consequence  has  been  that  he  has  led  them  beyond 
our  borders,  and,  in  two  pitched  battles,  has  severely  chastised 
a  greatly  superior  army  on  the  soil  of  Maryland.     The  time  has 
passed  for  the  existence  of  doubts  as  to  the  great  military  apti- 
tude and  genius  of  the  Southern  people,  and  if  there  is  truth  in 
the  constitutional  presumption  that  the  militia  of  the  States  can 
be  efficiently  commanded  by  State  officers,  there  is  equal  truth 
in  the  presumption,  upon  which  this  bill  is  embraced,  that  troops 
raised  by  the  Confederate  Government  from  any  one  State  can 
be  efficiently  commanded  by  generals  chosen  from  that  State. 

The  policy,  if  adopted,  will  also  beget  State  emulation  to  ex- 
cel each  other.     When  Virginia  troops  are  commanded  alone 


51 

by  Virginians,  and  Alabama  troops  alone  by  Alabamians,  it 
seems  to  me  clear  that  State  pride,  that  esprit-du  corps  which 
has  at  all  times  been  denned  an  invaluable  sentiment  m  an  army, 
will  exeite  each  to  vie  with  the  other  in  the  noble  and  patriotic 
effort  to  see  who  can  carry  the  barred  banner  deepest  into  the 
ranks  of  the  foe. 

There  being  no  constitutional  objection  in  the  way,  I  cannot 
perceive  a  reason  why  this  bill  should  not  become  a  law. 


Note. — Number  of  Brigadier  Generals  in  the  Confederate 
army  as  distributed  aiming  the  several  States  on  the  23d  Sep- 
tember, 1862: — [Official].  In  Alabama,  (i ;  Arkansas,  0  ;  Flo- 
rida, 5;  Georgia,  II  ;  Kentucky,  8;  Louisiana,  10 ;  Mississippi', 
8;  Tennessee.  11  ;  Texas,  9;  North  Carolina,  10;  South  Caro- 
lina, 11;  Maryland,  <> ;  Missouri,  5;  Virginia,  24. 

From  Alabama,  L.  P.  Walker- has  resigned.  Gen.  Rodes, 
appointed  as  from  Alabama,  is  a  Virginian,  leaving  to  Alabama 
but  four  Brigadier  Generals.  Thos.  J.  Jackson,  nominated  from 
Virginia,  is  not  included  in*  the  above  list.  Twenty-six  Briga- 
dier Generals,  then,  have  been  nominated  from  Virginia.  Three 
Alabama  brigades  in  Virginia  are  commanded  by  Virginians. 
Kentucky  bad  but  eight  regiments  in  the  field,  previous  to  Kir- 
by  Smith's  march. 


THE  PA\   OF  SOLDIERS. 

Ix  the  Senate,  October  6th,- the  bill  to  increase  the  pay  of 
Privates  in  the  army,  and  the  substitute  reported  by  the  Mili- 
tary Committee  to  give  five  millions  of  dollars  to  the  indigent 
families  of  the  privates,  being  under  consideration,  Mr.  Yancey 

said  : 

Mr.  President:  In  my  opinion  the  substitute,  if  enacted  into 
a  law,  would  operate  very  ueequally.  It  is  designed  as  aid  to 
the  sold'er;  but  to  be  applied  to  the  support  of  his  family.  Its 
operation  would  be  unequal  in  this — that  a  very  large  number 
probably  a  majority  of  privates  in  the  army  are  single  men, 
having  no  family  in  a  legal  sense.  The  substitute,  then,  would 
be  increased  compensation  to  one  class  of  soldiers  only — dis- 
criminating against  another  class — and  is,  therefore,  unjust. 

Again,  the  substitute  discriminates  between  the  poor  and 
those  who  have  a  competency  in  the  array.  It  is  a  proposition 
to  furnish  gratuitous  aid  from  the  Treasury  to  the  poor  families 
on  account  of  services  rendered  by  the  heads  of  those  families, 
while  there  is  an  equally  large  class  rendering  services  in  the 
army  of  equal  value,  whose  families  will  receive  no  such  aid 
from  the  Treasury.  The  operation,  therefore,  of  such  a  law 
would  be  partial,  unequal,  unjust,  and  of  an  agrarian  tendency 
If  we  ever  plant  the  seeds  in  our  legislative  policy  of  a  legal 
discrimination  in  favor  of  the  poor  against  the  rich,  the  time 
cannot  be  far  distant  in  which  the  scenes  of  ancient  history  will 
be  acted  over  again  in  our  midst,  and  the  wealth  of  the  coun- 
try will  be  seized  upon  and  divided  out  amongst  the  improvi- 
dent. 


53 

We  have  no  right  to  discriminate  bet  \veencmr  citizens — either 
for  or  against  rich  or  poor.  In  the  view  of  the  Constitution. 
all  are  equal  who  are  citizens. 

But  there  is  a  stronger  reason  still  for  my  opposition  to  the 
substitute.  It  is  unconstitutional— a  direct  ami  palpable  viola- 
tion of  the  Constitution.  The  Constitution,  part  1st,  section  6, 
Article  I,  says  that  "Congress  shall  have  power  to  lay  and 
lect  taxes,  duties,  imposts  and  excises  for  revenue  necessary  to 
pay  the  debts,  provide  for  the  common  defense,  and  carry  on 
the  Government  of  the  Confederate  States,  but  no  bounty  shall 
be  -ranted  from  the  Treasury.''  What  is  the  grant  of  live  mil- 
lions of  dollars  from  the  Treasury  to  the  families  of  indigent 
soldiers  but  a  bounty  ?  A  bounty  is  a  free  gift,  or  liberality  in 
bestowing  favors.  This,  then,  is  a  bounty.  It  is  not  pay  for 
services— if  it  was,  it  would  be  given  to  the  soldier  direct,  and 
to  every  soldier— whereas  the  substitute  proposes  to  give  the 
live  millions  to  the  "indigent  families"—  not  for  services  ren- 
dered—but because  they  are  "indigent" — not  to  a  family  of 
every  soldier,  but  only  to  those  of  them  that  are  ''indigent." 
It  is  clearly  then  a  bounty,  and  as  clearly  unconstitutional. 

Again,  the  substitute  oners  no  adequate  provision  for  the  sup- 
port of  the  families  of  poor  soldiers.  If  we  have  four  hundred 
thousand  soldiers,  and  half  have  poor  families,  it  will  give  to 
each  but  twenty-five  dollars. 

For  these  reasons  I  shall  vote  against  the  substitute. 

The  original  bill  proposes  to  increase  the  pay  of  the  privates 
and  non-commissioned  officers  to  fifteen  dollars.  Ought  we  to 
do  this?  I  think  that  we  should.  When  the  law  was  passed 
fixing  the  pay  of  the  private  at  eleven  dollars  a  month,  the  cur- 
rency was  sound  and  prices  at  the  usual  rates  as  in  times  of 
peace.  Now  our  currency,  in  which  the  soldier  is  paid,  is  great- 
ly depreciated,  and  prices  are  inflated  from  two  to  ten  fold. 
Considering  the  depreciation  of  the  currency  and  the  inflation 
of  prices,  the  soldier  receives  now,  in  reality,  not  one-half  the 


54 

sum  which  the  hiw  designed  he  should  reeeive.  In  fact,  he  can 
not  now  buy  with  eleven  dollars  one-fourth  of  the  articles  that 
he  could  buy  with  that  sum  one  year  ago. 

For  this  reason  I  think  it  to  be  but  bare  justice  to  increase 
the  soldier's  pay  at  least  40  per  cent. — say  four  dollars  a  month. 

I  am  actuated  also  by  another  consideration.  Without  pre- 
tending to  have  come  to  a  matured  opinion,  I  am  inclined  to 
think,  that  under  our  Constitution,  Congress  can  pass  no  pen- 
sion law.  If  it  be  true,  then,  that  we  cannot  pension  the  sol- 
dier wounded,  maimed  and  broken  down  in  the  service  of  his 
country,  it  becomes  a  high  duty  to  pay  him  well  while  he  is  in 
service. 

It  is  said  that  this  law  will  add  twenty  millions  of  dollars  a 
year  to  our  debt.  Let  it  be  so.  Curtail  the  leaks  and  corrup- 
tions in  other  branches  of  the  Government,  but  pay  the  brave 
and  toil-worn  soldier. 

I  shall  vote  against  the  substitute,  nd  for  the  bill  to  increase 
the  pay  of  the  privates. . 


Is- 

Ms 

WM< 

ITtlldu..  -i\l,  d 


